Cash Q&A: Brother-in-law’s claim on deceased’s estate highlights the real dangers of not leaving a will

My husband died suddenly and did not leave a will. We do not have any children, but my husband is survived by his mother and his brother.

I was under the impression that the whole estate would be made over to me, regardless of the fact that there is no will, but my brother-in-law believes he’s entitled to claim on my husband’s estate. Can you please clarify the position for me, I’m finding this difficult to deal with.

LK, Edinburgh

A: After funeral expenses, debts and liabilities have been paid, the Succession (Scotland) Act 1964 determines the distribution of an estate in the event that there is no will. There are three categories: prior rights, legal rights and free estate.

In respect of prior rights, a surviving spouse or civil partner has a right to the deceased’s dwelling house (or a share of) up to a value of £473,000. The surviving spouse is also entitled to a share of the furniture and furnishings etc, up to a value of £29,000 and cash up to a value of £89,000, if there are no surviving children or descendants of children or £50,000 if the deceased was survived by issue.

In relation to legal rights, if the estate has not been exhausted by the satisfaction of the surviving spouse or civil partner’s prior rights, then the surviving spouse or civil partner is also entitled to claim legal rights in the estate. Legal rights only apply to the net moveable estate (money, investments and possessions) and do not extend to the heritable property (land or buildings).

A surviving spouse or civil partner can claim a one half share of the net moveable estate if there are no surviving children; but only a one third share if there are surviving children.

Likewise, the surviving children can claim a one half share of the net moveable estate between them, if there is no surviving spouse or civil partner; or a one third share if there is a surviving spouse or civil partner.

The free estate is what’s left after funeral expenses, debts and prior and legal rights have been settled. There is a statutory order of beneficiaries, and in your situation, if the estate has not been exhausted by prior rights and legal rights, your husband’s mother and brother shall each share one half of the free estate.

It is only in circumstances where there are no surviving children, parents, brothers or sisters (or issue of the predeceasing children, brothers or sisters), that the deceased’s surviving spouse inherits the whole intestate estate. The above issue raises the importance of having a will put in place in order that your wishes are implemented on death. Depending on the size of your estate, inheritance tax and financial planning may also be required.

In addition to having a will prepared, you should also consider having a power of attorney put in place. It is important that legal, tax and financial advice are all taken in respect of all of the above matters.

• Laura King is a solicitor within the private client and financial services department at HBJ Gateley.

If you have a question you need answered, write to Jeff Salway c/o The Scotsman, 108 Holyrood Road, Edinburgh EH8 8AS or email: [email protected]. The above is for general purposes only and is not tailored for individual use. It does not constitute legal, financial or investment advice on any particular matter and must not be treated as a substitute for specific advice. No action should be taken in reliance of the information given. The Scotsman Publications Ltd and HBJ Gateley accept no liability on the basis of this article.