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American singer and songwriter Aaron Carter tragically died earlier this month, reportedly without leaving a Will, causing questions about who will inherit his wealth. It is now down to the State of California to decide whether his 11-month-old son will inherit his estate, including his $800,000 home.
Whilst the law in Scotland is somewhat different to that in America, and not everyone will have assets such as those of Aaron Carter, if someone dies without a Will, it can cause a lot of problems and distress for the family.
Without one you have no control of how your assets – your money, possessions, and your house – will be distributed, and it could end up that they are not in line with your wishes and an estranged family member benefits.
When someone dies without a Will in Scotland then the rules of intestacy are applied to the estate. Without a Will, there is no Executor (the person responsible for dealing with the administration of the estate), therefore firstly the family will have to apply to the Courts to have an executor appointed which can be a lengthy and costly process.
The intestate rules in Scotland are rather old fashioned and therefore are not always reflective of or indeed sympathetic to modern-day circumstances. It is a common misconception that when one member of a couple dies, the surviving spouse or partner will inherit their whole estate. That is not the case. The estate is divided into three parts:-
And within each of these parts, there are different rules as to who would benefit and how much they would benefit from. There are maximum values that a spouse can receive, and if there are children involved then these maximum values are reduced further with children also benefiting. If there are no children, then your parents and/or siblings can inherit certain parts of your estate to the exclusion of your spouse or civil partner.
If there is no surviving partner (either married or civil partner), the children of a person who has died without leaving a will inherit the whole estate. In the absence of a Will, a child will inherit under the intestate rules at 16 and before that age their inheritance would be administered by a Government agency. Further, the legal guardian appointed to any child under 16 may not ultimately be the person you would have chosen had you signed a Will.
Everyone should have a Will, regardless of the size of their estate or their circumstances. Families are becoming increasingly complex today and the law as it currently stands doesn't make any automatic provision for cohabitants or any provision for step-children.
By making a Will and recording your wishes in black and white, it means you will have a say in what happens to your assets when you die. It will avoid the complications that arise with intestacy, make things quicker and less costly, and if you die without a Will the consequences are likely to add further stress to your loved ones at an already difficult time.
