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Executry & Probate Without a Will


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Probate Without a Will

There are complicated legal rules of intestacy that can determine whether you have legal rights to your home or other possessions if the owner has died without a will. The rules are complicated and can vary depending on an individual’s situation therefore it is important to seek legal advice when dealing with probate without a will.

Neil Kilcoyne & Co can help you follow the correct procedures and rules of intestacy to help you navigate dealing with probate without a will. 

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What Happens When a Person Dies, Without a Will?

When a person dies without leaving a will it is known as intestacy. When a person dies and has left a will in place, they have died in testate also known as testacy.

Dying intestate can make administering their estate more complicated because it is down to the law to decide who inherits the estate. The criteria that the law follows to decide who inherits the estate is known as the rules of intestacy. 

If there is no will, an executor must be appointed prior to the grant of confirmation or probate has been granted. A bond of caution may also be required, which is an insurance policy that protects the executor against wrongfully distributing the estate.

Intestacy in Scotland

When dealing with intestacy or if there is no nominated executor in Scotland, the first step is to have an executor appointed by law in court. To do this, an application must be made to the Sherrif court. If there is a surviving spouse or civil partner, or next of kin, they would take priority and have a preference in being the executor.

What are the Rules of Intestacy?

Depending on your relationship to the deceased, you could still have a right to inherit their home or other assets when the person had died in intestacy and has not stated their wishes. The legal status of your relationship with the deceased is an important factor in establishing your rights. 

There is a statutory scheme in Scotland that favours spouses or civil partners and provides some protection to children. It can therefore be a much more complex situation when your family is not a ‘nuclear’ family, and you might be a ‘blended’ family, where there might be a partner or children from a previous relationship or marriage. Speak to a solicitor about your specific situation, and they can help you fight for your rights. 

Rule of Intestacy with a House

When it comes to a house or property in the case of intestacy, you don’t just receive legal rights to a home if you live there. You may however have automatic rights if you are married or in a civil partnership with the deceased, or the person who died was your mother or father.

Spouse and Civil Partner’s Prior Rights

If you are a spouse or civil partner of someone that has died, you may have Prior Rights to the house and possessions of the deceased. 

The Prior Rights in the case of a house, means you have the rights to the house up to a value of £300,000. If the house is worth less than that, you have immediate rights over this and can continue to live there. However, if the house is worth more than £300,000 this is a much more complex situation that requires legal advice as it could require the house to be sold.

As a spouse or civil partner of a person who died without leaving a will, you will also have prior rights to furniture and furnishings up to a value of £24,000 and cash up to a value of £75,000 depending on if there are surviving children.

Estate Left Over After Prior Rights

If there is estate left over after Prior Rights, your spouse/civil partner and children, (if there are any), are entitled to Legal Rights. Legal Rights apply to any leftover net moveable estates such as money, possessions, and investments. 

A spouse/civil partner can claim a one-half share of the moveable estate if there are no children, or a one-third share if there are living children. This works similarly if there is no living spouse, children can inherit one half of the estate.

Any remainders of the estate would then be distributed based on the hierarchy set out by the Succession Act. This could include parents or siblings for example.

If Your Partner Dies Without a Will

If your partner with who you are not married or in a civil partnership with dies, you are not guaranteed or legally entitled to any of the estate. You can however apply to the court to be considered for the discretionary financial award, but you may not be successful. 

Probate Without a Will Advice

If someone you love has died without leaving a will, contact us today for support and legal advice on how to best act in the situation and obtain a grant of confirmation. Similarly, if you want to discuss your own situation on what would happen if you die to your estate, our solicitors can advise you on estate planning for the future. 

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With offices based in Glasgow in Scotland, we’re able to give you the help you need, when you need it. Get in touch with a member of our team today to book an appointment or for a free telephone consultation.