Dying Without a Legally Valid Will – Intestacy Scotland

The result of dying without a Will can be significantly different to what you would have wanted to happen.

Where there is no Will, the law imposes a strict set of rules for dealing with a deceased persons’ estate. These are called the rules of intestacy.

The rules of intestacy provide a process that is to be followed.

What Happens When Someone Dies Without a Will?

The first thing to be done is for an Executor to be appointed. With no Will, it is the responsibility of the Scottish courts to appoint this person. Their role will be the same as an Executor appointed in terms of a Will, but they are called an ‘Executor Dative’.

The Executor Dative will then begin to administer the deceased’s estate. However, the Executor Dative must organise the estate according to a strict set of rules. 

Their first priority is to clear outstanding debts on the estate e.g. mortgages, loans etc. Only after they have done this can they start to distribute the remaining estate amongst surviving family members.

Who Inherits Under the Rules of Intestacy?

The rights of surviving family members under the rules of intestacy are precise. 

Prior Rights – The Executor Dative will first attempt to satisfy a set of rights that is owed to a deceased’s surviving spouse or civil partner. These are known as their ‘Prior rights’. They entitle the surviving spouse or civil partner to the value of the deceased’s home, a proportion of the furniture in that home and a cash sum, along with other things. All of these assets are capped at certain values. 

Legal Rights – The Executor Dative must then attempt to observe another set of rights the surviving spouse or civil partner may be entitled to. Their ‘Legal Rights’ entitle them to a further share in any money that the deceased has left behind. However, this doesn’t necessarily mean they will be entitled to all monies left behind where there are also surviving children to account for. 

Free Estate – The last step in the process is to distribute any remaining property in a deceased’s estate. This is known as the ‘Free Estate’ and tends to be given to other surviving family members. 

However, it can often be the case that after both the Prior Rights and Legal Rights have been dealt with, there is no property left over to form a Free Estate.

Specialist Executry and Probate Lawyers Inverness, Highlands, Scotland

Innes & Mackay know that the Executry process can be complicated and we understand the problems clients face in attempting to follow the Executry rules. The process can involve a lot of paperwork and talking to parties who money is owed to or from. 

We know the responsibilities of being the Executor of a loved one’s Will can feel overwhelming at an already distressing time.

We’re experienced in helping Executors complete their job in administering a loved one’s estate, and in advising families if a loved one has died without a Will.

We will relieve you of much of the burden you’re feeling and guide you through the process as smoothly as possible.

For help with the legal process after the death of a loved one, call us on 01463 232 273 or fill in our contact form.