Why You Should Always Have a Will
Before we talk about the changes, it is worth reiterating the three most important things you can do to help your loved ones when you die: (1) Make a Will, (2) Make a Will, and (3), Make a Will. There is one other important thing you should do: MAKE A WILL!
Dying without a Will can cause huge headaches for your loved ones, at a time when they are least prepared to deal with it. A Will need not be complicated and is the best way to ensure your wishes are adhered to when it comes to the distribution of your assets. We’ve written a step by step guide to writing a Will, which we would encourage everyone to read.
Dying without a Will in Scotland – Intestacy
If you do not have a Will, it will be up to the Scottish Government to decide what happens to your assets and their criteria are laid out in the Rules of Intestacy. We’ve gone into detail in this article how the rules of intestacy work, so we’ll not repeat that here, but the change in the 2024 act relates to spouses and civil partners.
Prior Rights and Legal Rights
Where there is no Will, the Rules of Intestacy deal with an estate in three parts. First, there are ‘Prior Rights’ which are exercised by a Spouse or Civil Partner and relate to certain property, furniture and money.
Second, there are ‘legal rights’ which can be exercised by spouses/civil partners, and children if there are any.
Dying without a Will in Scotland – the Trusts and Succession (Scotland) Act 2024 received royal assent on 30 January 2024 and while the bulk of the act deals with trusts, it has made a change to the rules around the distribution of assets where a person dies without a Will. Whilst we are still waiting for confirmation of the date in relation to the changes affecting trusts, we have had confirmation that the rules discussed in this article will come into force on 30th April 2024.
Free Estate
Anything that is left is known as the ‘free estate’. A peculiarity of the law was that where someone dies without a Will and does not have any children, once a spouse/civil partner had claimed their ‘prior rights’ there could still be a substantial part of the estate left over.
Under the old rules, rather than this additional estate being given to the spouse/civil partner, any living parents, followed by siblings and then other family members of the deceased would inherit it.
Dying without a Will in Scotland – What has changed?
The new act moves spouses and civil partners above parents and siblings in the hierarchy of inheritance. In practice, it means that where there is no Will and where there are no children, a spouse/civil partner can inherit everything.
Children are still higher than a spouse/civil partner in the hierarchy, so if you die without a Will, once ‘prior rights’ and ‘legal rights’ have been exercised, any children will inherit the remainder of the ‘free estate’.
Intestacy will always flow down through the generations until it can go no further; then it goes back the way. So if you have children but they have pre-deceased you, then any grandchildren would be next, then great grandchildren, and so on. Again, you can read more what happens when you die without a Will here.
Conclusion
The key and most important fact to take from this is, if you don’t have a Will, MAKE A WILL!
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