My relative died without making a Will – what happens next? 

When a relative dies without leaving a Will in Scotland, they are said to have died ‘intestate’ and the process of handling their estate is governed by a set of legal rules known as intestate succession. This ensures that the deceased person’s assets are distributed in a fair and orderly manner. The steps and implications of this process can be complex, involving legal considerations and the need for clear understanding by the surviving family members. 

Appointing an executor 

The first step in the process is the appointment of an executor-dative. Typically, this is a close relative, such as a spouse, civil partner, or adult child. However, if no family member is willing or able to act as the executor, the court may appoint a solicitor or another suitable person. The executor-dative is responsible for gathering and valuing the deceased’s assets, paying off any debts, and distributing the remainder of the estate according to the rules of intestate succession. 

Applying for Confirmation 

The executor-dative must apply for Confirmation, which is a legal document that allows them to administer the estate. This involves submitting an inventory of the deceased’s assets and liabilities to the Sheriff Court. Once Confirmation is granted, the executor can collect and distribute the estate’s assets. 

How the estate is distributed  

Prior rights 

The surviving spouse or civil partner has certain entitlements known as prior rights. These take precedence over other claims on the estate. Prior rights include: 

Right to the family home; the surviving spouse or civil partner is entitled to the deceased’s interest in the family home, up to a value of £473,000. They are also entitled to furniture and plenishings within the home, up to a value of £29,000 and a cash sum of up to £50,000 if the deceased had children, or £89,000 if there were no children. 

Legal rights 

After prior rights have been satisfied, legal rights come into play. Legal rights are a fixed entitlement for the deceased’s spouse or civil partner and children. The spouse or civil partner is entitled to one-third of the movable estate (which includes money, shares, and other personal property) if the deceased had children, or one-half if there were no children. The children are collectively entitled to one-third of the movable estate if there is a surviving spouse or civil partner, or one-half if there is not. 

Free estate 

Once prior rights and legal rights have been addressed, any remaining assets constitute the free estate. The free estate is distributed according to a strict hierarchy set out by the law. 

If the deceased has surviving children, they inherit the free estate in equal shares. If there are no children, but there are grandchildren, then they will inherit the free estate in equal shares. In the event there no children or grandchildren, but there is a surviving spouse or civil partner, then they will inherit the whole estate. It is only where there is no surviving spouse, civil partner, children or grandchildren, that the estate would then be distributed to remoter family members.

Intestate succession 

Dealing with the estate of a relative who has died without a Will can be challenging and may lead to disputes among family members. The fixed rules of intestate succession do not allow for personal preferences or the deceased’s potential wishes. Therefore, it is essential for individuals to consider making a Will to ensure their estate is distributed according to their desires. 

Writing a Will isn’t just something for the wealthy or people with complex finances, it can be relatively straightforward and cost-effective to have one drawn up, and can spare families and loved ones the stress and pressure of having to go through the intestacy process.