Cash Clinic: ‘My husband did not make a will – might I lose our joint home?’

Q: My husband has just died. He didn’t get time to make a will and I have no idea what I am entitled to, or even what to do next.

I am worried that I might be thrown out of our home, where we both lived happily for 20 years. My friend told me you only get the house if it is worth under £300,000. I am sure I saw somewhere that it is more than this, but can’t remember where. My husband was married before and had three children. I am afraid I don’t get on with them at all. MK EDINBURGH

A: It is important that you take advice from a solicitor specialising in this. The Law Society of Scotland has a very helpful website where you can search for someone working in this area. – simply visit and click on “Find a Solicitor” or call them (0131 226 7411).

Hide Ad
Hide Ad

People often think that their husband or wife will get everything if they die, even if they don’t leave a will, but this is often not the case, and depends on the value of the estate. You may be entitled to the house, as you were living there at the time of your husband’s death, up to the value of £300,000, under what are called “prior rights.”

You might also be entitled to the house if there is a “survivorship destination”. This is a particular clause in the title to the house which allows for it to pass to “the survivor”. There are pros and cons in having this; some titles have it and some not.

“Prior rights” also give you a right to a certain amount of cash, the amount depending on whether you have children or not and rights to the furniture up to a certain limit. The estate is then divided out and this is dependent on whether you have children. The spouse is not at the top of the list for division of the estate after “prior rights” are taken into account. There are proposals to change this.

What you read about was possibly the Scottish government’s plans to raise the threshold to £473,000 for the property claim under “prior rights”. This reflects the increase in property values since the last rise to £300,000 in 2005. This would mean that more people would be able to retain their property on the death of a spouse. However, it is not due to come into force until 1 February.

Another change proposed is that the limit for a “small estate” be increased to £36,000, up from the current figure of £30,000. This is a special simplified procedure for dealing with small estates through the Sheriff Court, and staff there will assist people to complete the forms.

This, however, does not change the fact that it is important to make a will to avoid unnecessary expense, work and heartache, and to ensure what you leave goes to those whom you would want to receive it. If you have not already done so, you should make a will to deal with matters when you die and a power of attorney, which deals with your affairs while you are alive. • Glen Gilson is a partner and head of private client & financial services at HBJ Gateley