Today marks a significant change in Scotland’s law of intestacy, particularly concerning the rights of spouses and civil partners. From 30 April 2024, where a person dies without making a Will and with no children, their surviving spouse or civil partner will inherit their whole estate.

These changes could potentially impact many individuals and families across the country. While the change is a positive one, and will be welcomed by many, it could lead to disastrous consequences in certain circumstances.

Here’s what this change means and why it’s crucial to consider the implications for your estate.

The Shift in Succession Law

Until today, if you died without making a Will and without leaving children, your surviving spouse or civil partner was entitled to ‘prior rights’ from your estate – your house up to the value of £473,000, cash of £89,000, furniture in the house up to £29,000 and then one-half of your moveable estate. The remainder of the estate then passed to your surviving siblings and parents.

That could be particularly problematic in cases where the deceased ran a business or was self-employed and their business interest was effectively split among various family members who may (or indeed may not) get on.

Now, your spouse will effectively “jump the queue” and take the remainder of your estate before any of your wider family members. This change will be welcomed by many spouses or civil partners who have felt it unfair that the estate has been partially inherited by parents and siblings of the deceased.

Potential Problems and Pitfalls

Despite this change in the law, intestacy is still not a desirable option by any means.  There are a host of potential problems and pitfalls: –

1. You don’t get to decide what happens. The law dictates what happens to an estate based on the surviving family, the type of assets and the size of the estate.
2. Your spouse or civil partner will only receive your whole estate if you have no children. If you do have children, this could cause financial strain for your surviving spouse and in cases where there is a large moveable estate, leave the children better off than their parent.
3. The law doesn’t care if your children are young. As soon as they turn 16 they can access their inheritance, and can do whatever they want without any kind of trust arrangement in place. Having a Will means that proper arrangements for children can be put in place.
4. Not having a Will complicates the process for dealing with your estate, causing additional delay and cost.
5. The law doesn’t take account of vulnerable beneficiaries, who may be negatively affected by inheritance, for example by losing a package of means-tested benefits and support as a consequence. A carefully drafted Will can ring-fence their inheritance and protect their entitlement to state support.

Why You Should Make a Will

By drafting a will, you can:

1. Ensure your wishes are honoured: A Will allows you to specify how you want your assets to be distributed after your death. This provides clarity and reduces the likelihood of disputes among family members.
2. Protect your loved ones: Making a will enables you to provide for your loved ones according to your wishes, including your spouse or civil partner, children, and other beneficiaries.
3. Minimise legal complications: By having a legally binding document in place, you can simplify the process for dealing with your estate and minimise the risk of legal disputes or challenges.

Our Estate Planning Team Is Here To Help

In light of the recent changes to Scotland’s intestacy law, now is the ideal time to review your estate planning arrangements and consider drafting or updating your will. Our estate planning team at Walker & Sharpe can assist you, providing clear and straightforward advice.

Don’t leave your estate and loved ones’ future to chance. Take proactive steps to protect your assets and provide for your family by making a Will today.