When a person dies without making a will their cash and assets (described as their ‘estate’) will be distributed according to the Succession Scotland Act. It is most likely that the general provision set down in this act will not provide the result which would have been chosen by the deceased.
The first step is to have an Executor appointed. This involves an application to a Sheriff Court. There is a set of rules regulating who has the right to be appointed as executor. It is possible to appoint more than one person but often we find ourselves dealing with feuding families and competing applications which causes unnecessary delay and cost.
The Succession Scotland Act sets out the rules of division where there is no will. This act specifies that, after debts and other liabilities have been met, there are three sets of rules, any or all of which may be called into play in any given situation. These are:
Prior rights - due to the surviving spouse/civil partner (spouse) and are the first claim on the estate after debts and liabilities.
Legal rights – due to the surviving spouse and children.
Free estate - The remainder of the estate after prior and legal rights are paid out or the whole estate if there is no surviving spouse or children.
If the deceased was never married and did not have any children we usually have to instruct a genealogist to prepare a family tree which allows us to distribute the free estate. We recently dealt with an estate with 33 beneficiaries, all taking different shares in the estate. These may not be the people the deceased would wanted to inherit and, again, this causes unnecessary delay and cost.
There is no provision in the Succession act for cohabiting couples.
The following case studies are example of common situations we deal with:
Deceased survived by spouse and children
Estate consisting of a house, second home, bank accounts and an insurance policy.
The spouse would inherit only one of the houses under their prior rights and a share of the money as the deceased had children. The second home and balance of cash would be inherited by the children. It is possible in a case like this for the children to inherit more than the spouse.
Deceased not survived by spouse or children
Estate consisting of house, cash and investments
A family tree has to be prepared to establish who the closest relatives to the deceased are. We then have to find the addresses of these people. Often, beneficiaries are abroad and trying to find addresses is difficult, once again causing lengthy delays and expense.
Deceased was cohabiting, no children but survived by parents and siblings
Estate consisting of a house, cash and insurance policies.
A one half share of this estate would be due to the surviving parents and a one half share due to the siblings of the deceased. The surviving cohabitee would have to make a claim against the executor of the estate. The estate cannot be finalised until this claim is either agreed with the family or a decision made by a sheriff after what is usually a lengthy Court action.
These cases only scratch the surface of what we deal with on a weekly basis. The cost of making a will is usually minimal compared to the extra cost and delay caused where a person dies without a will. It is also very stressful for the family as the estate often goes to people who the deceased would not have wished to benefit.
To ensure your estate passes to the people you wish to benefit you should make a will. At Innes and Mackay we have a dedicated and experienced team dealing with the preparation of Wills.