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If you die without making a Will, where will your estate end up?

17 November 2020 Wills, Trusts & Estates Alan Roughead

When Love Island host Caroline Flack tragically took her own life at the start of this year she had not made a Will and it has been revealed recently that the fortune she amassed will go to causes the star was passionate about.

Anyone who dies without making a Will is declared intestate. In Scotland if someone dies and does not leave a Will, the law sets out how intestate estates should be divided. The executor first has to pay debts and meet certain liabilities from the deceased person's estate. After that, the executor can distribute the estate to the beneficiaries.

Certain beneficiaries have rights to claim from a deceased person's estate. These are called "prior rights" and "legal rights". After prior rights and legal rights have been satisfied, the executor must distribute the rest of the estate in accordance with the law.

The Scottish legal rules of intestate succession essentially provide for certain family members to inherit up to certain amounts. However, the rules are often complex and can sometimes produce slightly obscure results. For example, a surviving widow/widower can make a claim on the house and furnishings, but only up to a certain amount. Children are also entitled to a claim, however limitations do apply, and with more and more ‘non-traditional’ and extended families then this can be confusing.

Dying without a Will in Scotland also leads to otherwise avoidable additional costs, as a beneficiary needs to apply to the Court to become the Executor and often the Court will require that they obtain a special type of one-off premium insurance policy called a Bond of Caution, in order to protect the beneficiaries.

It is therefore far better to have a Will in place so you can decide yourself how your money, property and possessions should be distributed on your passing, saving your family additional stress and costs at what is already undoubtedly an extremely difficult time.

Although we may not all have amassed a reported £2m fortune like the Love Island Host, planning for your future, thinking of your family and loved ones, and having a Will in place is arguably one of the most important things you can do for yourself and your family.

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