Losing a loved one is always difficult and when pass away without a Will (also known as dying intestate), the process of handling their intestate estate is usually more complicated than if they had died with a Will (also known as dying testate). This guide will explore the rules relating to intestacy to help you navigate this challenging time.
At Jones Whyte, we understand how stressful this process can be. Our experienced lawyers are here to guide you through the intricacies of intestacy succession, ensuring your loved one’s assets are fairy and correctly distributed.
Table of Contents
- Understanding intestacy rules in Scotland
- What are prior rights?
- What are legal rights?
- What is the free estate?
- The benefits of using Jones Whyte’s intestate solicitors
- Key takeaways
- Frequently asked questions
Understanding Intestacy Rules: Scotland
When a person dies without a valid Will in Scotland (dying intestate), their estate is distributed according to the Succession (Scotland) Act 1964 as amended. This legal framework determines how assets – money, possessions, property, etc. – are distributed among surviving relatives per Scots Law and not the deceased’s personal wishes.
The first thing to note that since there’s no will, no-one is named as executor to manage the estate.
In these cases, someone with a beneficial interest in the estate is entitled apply to the deceased’s local sheriff court to become the executor-dative. This is done with the help of a solicitor. Once appointed, the executor needs ordinarily needs to get an insurance bond known as a ‘Bond of Caution’ before then applying to the same local sheriff court for the Grant of Confirmation.
Who is entitled to inherit the deceased’s estate?
Under the Law of Intestacy, only certain family members are eligible to receive an inheritance when then is no valid will. This includes:
- Surviving spouses or civil partners.
- Children and remoter issue.
- Other close relatives such as a parent, grandparent, siblings () or aunt/uncle.
The estate passes to the Crown if there are no surviving relatives or traceable successors.
Who is not entitled to the estate?
Currently, The Succession (Scotland) Act 1964 for intestate estates does not make provisions for:
- Cohabitants or “common law spouses”- Though co-habitants can make a claim through the court on the deceased’s estate under section 29 of the Family Law (Scotland) Act 2006
- Step-children or foster children.
What happens to minor children if there is no will?
If the estate (or part of the estate) falls to be inherited by children under the age of majority, then their legal guardian can apply to the court to be executor on their behalf. Additionally, the executor would have to seek direction from the Accountant of Court as to how the estate of any minor is to be managed.
Are there any fees or taxes associated with intestate estates?
Yes, there are fees and taxes on intestate estates in Scotland, including:
- Petition fee– The courts charge £22.00 to process a petition for executor-dative.
- Bond of Caution fee- The cost of this depends on the value of the estate. Your solicitor will usually obtain this quote for you.
- Confirmation fee: The confirmation fee varies depending on the size of the estate. Estates under £50,000.00 incur no fee, estates between £50,001.00 and £250,000.00 incur a charge of £341.00 and estates exceeding £250,000.00 incur a charge of £684.00. There is also an additional charge of £9 per certificate if individual certificates are required.
- Inheritance tax (IHT): If the estate’s value is over the threshold of £325,000, then subject to any reliefs available such as spousal or charity exemption, TNRB, APR, BR, RNRB, TRNRB etc. inheritance tax is charged at 40%.
How are intestate estates distributed?
Once confirmation has been granted, the executor is in charge of managing and distributing the intestate estate. Executors are usually a surviving spouse or civil partner (followed by surviving children), but this isn’t always the case.
Jones Whyte’s lawyers are experts in Scottish intestacy laws. We will help you identify the rightful beneficiaries by conducting thorough research and guiding you through the process of being an executor.
Role of the executor
An executor’s role also includes paying for funeral expenses and settling any outstanding debts of the deceased person’s estate before assets can be allocated. The remaining assets are then divided into two categories:
- Moveable estate – money, shares, cars, furniture or jewellery
- Heritable estate – land or buildings owed by the deceased
After categorising the assets, the estate is divided into a specific order of inheritance:
- Prior rights
- Legal rights
- Free estate
What Are Prior Rights?
In Scotland, prior rights are a set of entitlements granted to the surviving spouse or registered civil partner of the person who dies without a will. These rights take precedence over other claims on the estate. Surviving spouses or partners are entitled to:
- Housing rights to a maximum value of £473,000. If the property value is less than this amount, the benefit is capped at the property’s value. Generally, the surviving spouse or partner must be living in the house at the time the deceased passes away.
- Household contents up to the value of £29,000. Similarly to the above, the maximum benefit is capped at the household contents value, if the value drops below £29,000.
- Cash rights up to the value of £50,000. If there are no surviving children, this amount is increased to £89,000.
Once prior rights have been addressed, the next phase involves the legal rights of the estate.
What Are Legal Rights?
Legal rights ensure certain family members receive a portion of the deceased person’s net moveable estate, such as money, shares, furniture or jewellery. The distribution of legal rights depends on who survives the deceased:
- If there are no children or remoter issue, a spouse or civil partner inherits 50% of the net moveable estate.
- If there is no spouse or civil partner, children (or remoter issue) are entitled to 50% of the net moveable estate, shared equal.
- If both a spouse/civil partner and children (or remoter issue) survive, then the former get a 1/3 third share of the moveable estate and the latter get a 1/3 third share of the net moveable estate.
For example, if someone dies leaving £50,000 in net moveable assets, their estate would be divided as follows:
- Spouse or civil partner = receives £25,000 (50%).
- Children = £25,000 is shared amongst all children equally. If there are three children, each receives £8,333.33.
- Both a spouse/civil partner and children survive the deceased:
- Spouse/civil partner = £16,666.67 (one-third)
- Children = share £16,666.67 equally. If there are three children, each receives £5,555.56
What Is A Free Estate?
A free estate is a portion of the deceased person’s assets after prior and legal rights have been addressed. It includes all assets not specifically allocated under these rights and is distributed according to the Rules of Intestacy, prioritising different family members in a set order:
Children and grandchildren
If the deceased has children (including adopted children) they inherit the entire estate. If the deceased’s children have already died and are survived by their own children (i.e. the deceased’s grandchildren), the grandchildren are entitled to the entire remaining estate.
Surviving spouse or civil partner
If no children or remoter issue survive the deceased, the surviving spouse or civil partner will inherit the entire remaining estate.
Parents and siblings
If no descendants survive the deceased, the free estate is divided in half; with one half going to the deceased’s parents and the other divided among the deceased’s siblings. If siblings have already died, their children (i.e. the deceased’s nieces/nephews) are entitled to their parent’s share of the free estate.
In cases where either only sibling(s) or one or both parents survive the deceased person, either party is entitled to 100% of the free estate.
Aunts and uncles
If none of the above survives the deceased, the estate is equally distributed among the deceased’s paternal and maternal aunts and uncles. Should they have already died, their children (i.e. the deceased’s cousins) will inherit their parent’s share of the free estate.
Grandparents
If no aunts or uncles survive the deceased, the deceased’s grandparents are entitled to the entire free estate, followed by:
- Great-aunts and uncles
- Remote ancestors like great-grandparents or great-great-grandparents.
Ultimus haeres
Where there are no surviving blood relatives, the Crown inherits the free estate of the deceased.
The Benefits Of Using Jones Whyte’s Intestate Solicitors
You can’t go wrong with Jones Whyte’s probate and executry solicitors on your side when it comes to handling intestate estates – here’s why:
- Legal expertise: Our Glasgow-based law firm is accredited by the Law Society of Scotland and has decades of combined experience in estate management. We will guide you through the entire intestate succession process, ensuring fair allocation of your loved one’s estate.
- Reputation: We are proud of our 4.8/5 star Trustpilot rating, solidifying our position as one of Scotland’s leading law firms.
- Tailored approach: We understand no two estates are the same and take a personalised approach for each of our clients to ensure the best possible outcome.
- Peace of mind: By entrusting your intestate estate to Jones Whyte, you have peace of mind knowing that your loved one’s assets will be handled professionally and efficiently.
Key Takeaways
- When someone dies without a valid will in Scotland, their estate is deemed intestate.
- Intestate estates are governed by the Succession (Scotland) Act 1964, whereby an executor is appointed to manage the estate and decide how moveable and inheritable assets will be distributed among surviving family members.
- A surviving spouse or civil partner generally inherits the largest share of housing rights, household contents and cash entitlements compared to other family members. This is known as “prior rights”.
- Once prior rights have been addressed, the remaining moveable assets of the deceased person – like money, possessions, and furniture – are divided according to specific legal rules, known as “legal rights.”
- After prior and legal rights, the remaining assets are referred to as a “free estate”. These assets are then distributed to family members in a specific order of priority.
- Where there is no surviving spouse, civil partner or blood relatives, the Crown inherits the deceased’s entire estate.
- Jones Whyte’s professional team has a deep understanding of Scottish intestacy rules, ensuring your loved one’s estate is handled fairly and with care.
Jones Whyte Is Here To Help
Winding up an intestate estate can be time-consuming and stressful, but it doesn’t have to be with Jones Whyte at your side.
Our professional team is extremely knowledgeable in estate management and is here to guide you through the entire process. Whether you’re winding up a small or large estate, contact our Glasgow-based team today!
Please note: This article is for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for professional legal advice tailored to your specific circumstances. If you need advice on a legal matter, get in touch with our team.
