Losing a friend or family member is very difficult. While most of the time, people know to have a Will written and prepared for the future, there can be occasions when a loved one dies without leaving one behind. In Scotland, the Rules of Intestacy are applied to the estate when this situation occurs.
What does the process involve?
If there is no Will, the first step is to have an executor appointed by petitioning the court. An executor becomes responsible for dealing with issues related to the deceased’s estate. The court will consider a number of parties eligible to take on the role, but it must be applied for in the following order of priority:
- The spouse or civil partner
- Anyone entitled to inherit all (or part of) the estate
- Next of kin
- Creditors of the deceased
- Anyone entitled to legacies from the estate
- The Procurator Fiscal
This process only happens when someone dies without a valid Will in place, or if a Will does not appoint a named executor. It is therefore recommended to prepare a Will, with legal advice, to at least have an executor appointed.
Once an executor has been appointed, they must then obtain a bond of caution which is an insurance policy that guarantees that only the executor can distribute the estate according to law. It is highly likely that insurance companies providing bonds of caution will require the executor to appoint a solicitor to assist with the distribution of the estate, as part of the insurance policy.
At this point, the normal administration of the estate will follow. The Succession (Scotland) Act of 1964 will determine the distribution and there are three categories:
Prior Rights
The surviving spouse or civil partner may be entitled to three rights. The surviving spouse or civil partner is entitled to the house in which the surviving spouse or civil partner lived with the deceased, up to a certain value. They are also entitled to the contents of the house up to the value of £29,000, as well as a cash right. The value of this cash depends on whether the deceased’s child(ren) survived them.
Legal Rights
Legal rights apply whether or not a Will is left by the deceased. These rights entitle the surviving spouse, or civil partner, as well as children, or dependents of a predeceasing child, to a fixed share of the ‘moveable’ estate. This includes all assets excluding land or property, such as money, possessions, and investments. If there are no surviving children, the spouse or civil party can apply for half of the moveable estate, but if there are surviving children, both parties are entitled to a third. Should there be no spouse or civil partner, then the surviving children are entitled to half, split equally between them.
The Free Estate
What remains of the deceased’s estate is known as the Free Estate. Sometimes all of the estate comes under this term when there is no surviving spouse or civil partner. The Free Estate is divided according to the terms within the Succession (Scotland) Act 1964. As a general rule, the estate should be inherited by surviving family members. In this regard, the estate will first be offered to the surviving child(ren), or grandchild(ren) should there be no surviving children. The Act highlights that descendants should inherit but if there are none, then parents and siblings will share the Free Estate. If these family members do not survive, then the estate will go to a surviving spouse or civil partner. Legal experts will be able to advise on the finer details regarding the Free Estate and the Rules of Intestacy.
Where can I find advice about a loved one’s affairs?
To avoid any complications, as legal advisors we would always recommend that everyone has a Will prepared. Regardless of your family circumstances, or the size of your estate, having a Will in place will afford your next of kin a relatively straightforward process in their time of grief. However, we understand that in some circumstances a Will won’t have been left and so loved ones may be seeking help and advice. At d and h, our executry team of specialists can provide friendly, effective, and sympathetic advice on all aspects of your loved one's affairs following their death, whether or not a Will has been made.