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What happens if you don't leave a Will?

09 July 2021 Category: Private Client

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Don’t leave a legacy of confusion and conflict

For a lawyer, or for anyone involved in dealing with the work of winding up someone’s estate, it is simply astonishing that six out of ten adults in Scotland don’t have a Will.

Why? Because we regularly see the undesirable consequences of not leaving a Will. And because making one is not particularly expensive or time consuming.

It’s understandable, of course, that people dislike thinking of their own mortality and there’s an unfortunate temptation to put making a Will to one side ‘for when we are older’. But a more important reason for not making a Will, we suspect, is that most people assume that if they don’t make a Will, their estate will simply be left to their nearest and dearest, and it’s a lot more complicated than that.

So, what happens if you don’t leave a Will?

If you are married or in a civil partnership, your estate will go to your spouse with a share allocated to your children. Your spouse would inherit the family home (up to a maximum value of £473,000), its contents (up to £29,000) and a cash sum of money – up to £50,000 if there are children and £89,000 if there are no children. These are what are known as your spouses ‘Prior Rights’.

Any children are then entitled to a third of your ‘moveable’ estate – that is everything except land and buildings – divided equally between them and your spouse is also entitled to a third of the remaining estate. These are known as ‘Legal Rights’.

Once the Legal Rights have been satisfied, any child or children are entitled to the remainder of the estate, irrespective of whether it is made up of heritable or moveable property.

On the face of it, that all seems straightforward enough. 

Dig a little deeper, however, and the sort of problems that cause family conflict become more obvious. 

What happens if your spouse then re-marries and leaves your combined estate to his or her new partner?

Your children would effectively be disinherited.

What happens if your spouse had children by a previous relationship?

They would be entitled to a share of their parent’s estate and your children would receive nothing. 

This can cut both ways. If you had children by a previous relationship, they would be entitled to a share of your estate, potentially leaving your spouse with less than you had intended. 

Moreover, if you want a particular heirloom to go to a specific person, there’s no guarantee that your wishes would be respected. Just saying to someone ‘I want you to have that when I go’ is not legally enforceable.

What happens if you are not married?

The situation becomes even more complicated if you are not married to your partner. If you are not married or in civil partnership, your partner has no automatic entitlement to your estate. Your partner can make an application to the court for a share of your estate, but that involves cost, time and even then, the outcome is by no means certain. 

It doesn’t take much imagination to envisage a situation in which your children from a previous relationship claim your estate, as they would be entitled to do, leaving your partner with no home and no assets. 

Even if your house is in joint names, unless there is a survivorship clause in the title (which means that the property automatically transfers to the survivor on death) then your children from a previous relationship would end up owning half the property with your surviving partner. If they insist on realising their share of the property value in cash, your partner could be forced to sell-up and lose the family home. 

These are just a few examples of the possible complications that can arise if you don’t have a Will. We know from past experience that they can cause bitter family disputes and lasting resentment. Fortunately, the solution is easy – just make a Will, the sooner the better.

If you're thinking about writing a Will, get in touch today. 

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