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Do you know who inherits your estate if you don’t have a Will? 

Many people don’t know the answer to this question.  A common misconception is that a surviving spouse or civil partner would inherit everything.  Currently, this is not necessarily the case.

In 2015, the Scottish Government conducted a Consultation into the law that applies when someone dies “intestate” (ie. without a Will).  Following this, the Scottish Government acknowledged the law in this area needs updating, since the “make-up of families in Scotland is vastly different today than it was when these laws were passed”. 

This is an area of law that really should reflect the expectations of modern society. 

As a result of the 2015 Consultation, it has been agreed that the law should be changed so that, where a person dies leaving a spouse or civil partner but no children, the spouse or civil partner will inherit the entire estate.  The Scottish Government has confirmed it will “take the next legislative opportunity” to make this change.

It is already the case that where a person dies intestate leaving children, but no spouse or civil partner, the children will receive the entire estate.  However, the Consultation produced no clear agreement on what should happen when a person dies leaving behind a spouse or civil partner and children.  How should the estate be divided if there is no Will to provide guidance?

A further public consultation considering this point was conducted last year.  The results of this have recently been published and a link to the Scottish Government’s response can be found below.

Unfortunately, while there was agreement that the rules require change, there was still no consensus on how this should be done.  A number of options were considered, but no one solution was favoured above the others.  As a result, further consultation on this point will be required.

In the meantime, other matters discussed in the Consultation Paper have obtained a consensus and we hope to see some changes in the law shortly.   

Ultimately, the consultation emphasises the importance of having a Will, and keeping it updated.  It is only by putting in place a Will that you can be clear on who will inherit your estate after your death. 

Should you wish to discuss Wills or other estate planning matters, please get in touch with the Private Client Team at Stronachs who will be happy to help.


Scottish Government Consulation Response

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