Although most people know to write a will in their lifetime, there are a lot of occasions when someone dies without a will. When you die without a will in Scotland the rules of intestacy are applied to your estate. These rules are contained in the Succession (Scotland) Act 1964 ("the Act") and although there have been some updates over time, much of the legislation is now 57 years old and may not reflect the modern family.
What is the process when someone dies without a will?
The first step when someone in Scotland dies without a will is to petition the court to have an executor appointed.
The executor is the person who is responsible for dealing with the administration of the estate. The court will consider the following parties as potential executors:
- the deceased's spouse or civil partner
- those entitled to inherit all or part of the estate
- the deceased's next of kin
- the deceased's creditors
- those entitled to legacies where there is a will but no executor; and
- the Procurator Fiscal.
This is an order of priority and if more than one of these parties wishes to be appointed then the Court will usually choose the highest on the list unless they have reason to believe that person would not be a suitable appointment e.g. they are abroad or imprisoned. This process only happens when you die without a will or your will does not appoint an executor and can be expensive due to court costs and legal fees. It is, therefore, worthwhile getting a will in place, even if just to appoint an executor.
The next step is to get a bond of caution granted. This is an insurance policy to insure against someone applying for confirmation (this is what gives the executor title to deal with the estate) when they are not entitled to do so and against an executor failing to distribute the estate according to the law. Most bond of caution providers will require the executor to appoint a solicitor to deal with the estate as part of the policy conditions. This means the executor will not be able to administer the estate themselves. There will also be legal fees and costs to apply for a bond of caution. Again, this is only what happens when you die without a will. An executor appointed in a will does not require a bond of caution and so they would not have to go through this expensive process.
Once these steps have been taken, the estate then follows the normal administration procedure. You can read here how an intestate estate will be distributed.
We would recommend that everyone has a will in place regardless of the size of your estate or your family circumstances. By preparing a will - even a very simple will - you can avoid the expense and hassle of the above process which only happens when you die without a will or without an executor appointed in your will. Often, when you die without a will, the additional expenses incurred are more than the cost of a simple will.
