Sometimes people assume that when they die, their nearest and dearest will automatically inherit their estate. They might think that everything they own will go to their spouse or civil partner and they don’t have to worry about anything else. However, the reality is somewhat different. When you make a Will, you can direct what happens with your estate after your death. If you don’t make a Will, your estate will be distributed in accordance with the Law of Succession in Scotland. When you die without a Will, your estate will be described as an “intestate” estate.

If I haven’t made a Will, does my spouse or civil partner inherit my entire estate?

The short answer to this is perhaps! Much depends on how your estate is made up as well as the overall value of your estate. These two elements will direct who should receive what when you die.

The Law of Succession in Scotland directs that when someone dies without a Will, their spouse or civil partner is entitled to Prior Rights and Legal Rights.

What are Prior Rights?

A surviving spouse or civil partner has an automatic right to share in the estate of their late spouse or partner. Prior Rights cover heritable property (generally land and buildings) and moveable property (money, insurances, investments etc.). The current entitlement is as follows:

• The family home (up to a value of £473,000);
• The furniture and movables in the house (up to a value of £29,000);
• £89,000 of cash or cash equivalents where the deceased had no children or £50,000 if the deceased had children.

There are two important points to note. First, if you are cohabiting with a partner but not married or in a civil partnership with them, they have no right to share in your estate. Second, if the Prior Rights exhaust the estate, there will be nothing available for Legal Rights.

Finally, it is important to be aware that Prior Rights to not apply when the deceased made a Will.

What are Legal Rights?

Whether you make a Will or not, Legal Rights set out the entitlement to share in an estate. The spouse or civil partner and any children of the deceased are entitled to Legal Rights. Where there is no Will, Legal Rights follow on after Prior Rights have been satisfied. Importantly, Legal Rights only relate to the moveable estate, which is more or less anything that is not land and buildings.

Legal Rights apply in the following manner:

• The spouse or civil partner it entitled to half of the movable estate if there are no children. Where there are children, the share is one third of the moveable estate.
• Children are entitled to half of the moveable estate where there is no spouse or civil partner. Where there is a spouse or civil partner, children are entitled to one third of the moveable estate. This share is divided equally amongst the children.

What happens to the remainder of the estate?

As you will have appreciated, Legal Rights do not exhaust the entire estate. That means there is either one half or one third of the estate that remains to be distributed. Also, if there is more heritable property (generally, land and buildings), these are unaffected by Legal Rights but will need to be distributed in accordance with the Law of Succession.

If there are children, after satisfaction of Prior Rights and Legal Rights, the children are entitled to the remainder of the estate. That includes heritable and moveable estate.

Where there are no children, as a result of Section 77 of the Trusts and Succession (Scotland) Act 2024, since 30th April 2024, the surviving spouse or civil partner will inherit the remainder of the estate. Prior to that date, parents, siblings and other surviving relatives took precedence over the surviving spouse or civil partner.

What are my options to decide the distribution of my estate?

You must make a Will if you want to direct the distribution of your estate. Do not go through life with the assumption that your spouse or civil partner will inherit your entire estate. If you have anything more than a modest estate and do not have a Will, it will be divided according to the Law of Succession. That might mean those you love the most might not inherit what you thought they might!

Experienced Wills solicitors in Dunfermline, Fife

Stacey Parker deals with all aspects of Wills and Estates on behalf of clients in Dunfermline, throughout Fife and across Scotland. Stacey has many years of experience in this area of law and is able to help and advise you on your options. If you would like to meet with Stacey to discuss your needs, just get in touch with us to make an appointment or give us a call on 01383 629720.