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Dying without a Will

In Scotland, dying without a Will is known as dying ‘intestate.’  While we would always advise clients to prepare a Will to ensure your wishes are respected when you are no longer here – if a loved one dies without a Will the law will step in to regulate the process.

At The McKinstry Company we understand how difficult it is when a loved one passes away, but we are here to support you. If you have any questions about the succession procedure where there is no Will, or have any other executry query, contact us today on 01292 281711 or complete our online enquiry form to discuss your specific circumstances.

Experienced Wills Solicitors in Ayrshire & Dumfries and Galloway

When someone dies without a Will in Scotland, it will first be necessary for an Executor to be appointed.  This is the person who is responsible for the management of the estate – ensuring that the deceased’s assets are properly gathered in and distributed.  The Executor is appointed by making an application to the Sheriff Court where there is no Will.

Once the Executor is appointed, the estate can be gathered in and then distributed, once debts are paid.  The estate includes all money and possessions, including the deceased’s home.

If there is a Will, this would be referred to, in order to understand how the estate should be shared out.  However, if the deceased has died without a will then certain legal rules apply.

Prior Rights

Firstly, the surviving spouse or civil partner is entitled to a share in the estate under a system called ‘prior rights.’  Generally, this gives the surviving spouse the right to the house they shared with the deceased (subject to certain conditions), as well as furniture up to a certain value.  They will also be entitled to a cash sum, the value of which will vary depending on whether there were surviving children.

Legal Rights

The next set of rights to be considered where there is no Will are the ‘legal rights.’  These only apply to moveable property (not houses, for example).  The moveable property would include money in bank accounts, shares and possessions like jewellery.   If there is a surviving spouse, they are entitled to one third of the moveable estate if there are children and one half if there are no children.  Children (collectively) would be entitled to one third of the estate if there is a living spouse and one half if there is not.

Thereafter, the Succession (Scotland) Act 1964 sets out detailed rules on how the rest of the estate is shared.

Get in Touch

At The McKinstry Company, we put our clients at the heart of our work.  We understand how difficult it is when a loved one dies and we are here to support you.

Our goal is to generate and maintain strong and lasting client relationships rather than a transactional approach to the work which we undertake.  We are a law firm for life and will work with you throughout this difficult time, to ensure that you receive the best possible legal advice.

If you want to learn more about Wills and intestacy, get in touch today.  You can contact us on 01292 281711 or via our online contact form.  Our friendly and dedicated team are here to help you.

Thiona McQuiston Partner View Thiona's Profile

Thiona is Head of our Private Client Department where she is involved in all aspects of property, asset protection, Powers of Attorney, Guardianship, Wills and winding up estates.  

Having joined TMC almost three decades ago in a support role, Thiona went on to graduate with a Bachelor of Law from the University of Strathclyde in 1999.  When embarking upon her Law degree, she was told by the late Professor Sinclair “My dear, you have the University of Life” and that as a bedrock equips Thiona to advise clients on the aspects of their affairs in which she is involved.

Thiona enjoys walking, yoga, travel and spending time with her husband and family, including her dog Molly.

Debbie Dunlop Partner View Debbie's Profile

Based in our Girvan office, Debbie is a Partner who is highly experienced in Private Client work, particularly in the agricultural and farming sectors. She used to enjoy travelling the world, but now married to a farmer, she spends her weekends in wellies, feeding cattle or on the back of a quad bike. Debbie is also a member of the Agricultural Law Association.

Having lived in Rome for a number of years, Debbie also studied Law at the Université d’Auvergne in Clermont-Ferrand – as a result, she is fluent in both Italian and French. She can also speak a bit of Spanish, thanks to travelling around various Central and South American countries, including walking the Inca trail. She has managed to convince her husband that the cattle in Argentina will be worth a look at some time soon!

A keen runner, Debbie has competed in 10Ks and half marathons, even completing the Rome Marathon. This now comes in handy during lambing time chasing after ewes.

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