What would happen to your spouse if you died without making a Will?

There is no substitute for forward planning and making a Will is a key part of that. However, life is uncertain and we never know when death might overtake up. When that happens and you have not made a Will, it means that your loved ones need to depend on the law of succession to share in your estate.

If you die without a Will, your estate will be intestate. The first problem your spouse will face is to be appointed executor to your estate. When you draw up a Will, you decide who will be your executor and, on your death, they simply take up that role. However, when you die intestate (without a Will) your spouse will need to make an application to the Sheriff Court to be appointed the executor to your estate. Whilst this application is very straightforward, it does take an extra length of time and there is, of course, additional expense.

Does your whole estate go to your wife if you die without making a Will?

When you die without making a Will, there are two elements that immediately come into play. The first of these is Prior Rights. These are automatic rights your surviving spouse is entitled to when you die without making a Will. In addition to Prior Rights there are also Legal Rights. Your spouse and your children are automatically entitled to Legal Rights.

What are Prior Rights?

Prior Rights are automatic rights to which your surviving spouse is entitled to on your death when you do not make a Will. There are three elements of Prior Rights to which your surviving spouse is entitled:

  • The main family home (up to a value of £473,000);
  • The contents of the main family home (up to a value of £29,000);
  • The first £50,000 of cash and cash-related assets (if the deceased spouse had surviving children) or £89,000 if the deceased spouse had no surviving children.

Once Prior Rights have been satisfied, the next stage is to consider Legal Rights. You should, however, note that in the event of the Prior Rights exhausting the estate, there will be no funds available to satisfy Legal Rights.

What are Legal Rights?

After Prior Rights have been satisfied, both the surviving spouse and any children are entitled to Legal Rights.

Where there are no children, the surviving spouse is entitled to one half of the remaining moveable estate.

Where there are children, the surviving spouse is entitled to one third of the moveable estate and the surviving children are entitled to one third of the moveable estate equally amongst them.

The practical effect of Legal Rights is that once Prior Rights have been exhausted and the Legal Rights have been satisfied, if there are no children, the spouse inherits the remaining estate. If there are children, the children inherit the remaining estate.

The ramifications of this are that if you have a large estate and have not made a Will and have children, your children might stand to inherit more than your surviving spouse.

The Gazette has published a very useful flowchart showing who might inherit what where there is no Will. You will find that here.

A note of caution

You should be aware that the rules of intestacy, Prior Rights and Legal Rights apply equally to civil partnerships as they do to marriages. However, if you are cohabiting but are not married or in a civil partnership with your partner, they will have no entitlement to share in your estate and will need to apply to the courts if they wish to enjoy any part of your estate.

Get in touch to discuss your Will

If you wish to have a say in the distribution of your estate amongst your loved ones, you need to make a Will.

Our solicitors have years of experience advising clients on preparing their Wills. If you would like to draw up your Will, please contact us.

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