Scots law: what happens if you die without a will?

The coronavirus pandemic has sadly claimed the lives of many people in Scotland before their time. Someone taken ill suddenly may not have had time to make a will. If your partner has died without a will, you may be wondering about your rights.

Many families are needing personal legal advice in difficult times.

If you were living with your partner just before they died, but were not married or in a civil partnership, you may be classed as a “cohabitant”. So if they haven’t left a valid will, you may be able to make a claim against the estate.

How do I qualify for a cohabitant’s claim?

In order to make a claim against an estate as a cohabitant, you have to raise a court action within six months of your partner’s death. This is a tight timescale and therefore you should seek legal advice as soon as possible.

In considering your claim, the court will consider the length of the time you have lived together, the nature of your relationship and any financial arrangements made between you.

How much can I claim as a cohabitant?

The maximum amount you can claim is the same as if you and the deceased person had been married. This depends on your partner’s assets.

For example, if you are living in a house owned by your partner when they died, you may be able to claim to receive the house and furniture up to a certain value and a cash amount from the estate. The amount will vary depending on whether your partner had children.

Our personal law solicitors at Gibson Kerr can advise you on the maximum value of your claim once we know more about your partner’s assets. However, it is important to understand that you may not necessarily receive the maximum amount of the award – it will be for the sheriff to decide.

Will I have to to go to court to make a cohabitation claim?

It may be possible to negotiate with the executors and beneficiaries of the estate to agree that you should receive assets or money. An amicable agreement reached out of court saves both parties the time, expense and stress of court action. We can act on your behalf in such a negotiation.

What happens if my partner has left a will?

If your partner made a valid will, you should check if they have left you a legacy. If not, unfortunately you cannot make a claim as a cohabitant. These claims can only be made against estates where there is no will.

How will I instruct a solicitor during the COVID-19 lockdown?

Currently, it’s unlikely you can meet a solicitor in person. However, many solicitors are still working and can offer you a remote meeting. The team at Gibson Kerr will be happy to have an initial meeting with you over a video or telephone call.

There is a limited amount of business being accepted at Sheriff Court hubs throughout Scotland. If your case is urgent and you have a deadline, a solicitor should be able to lodge a claim with the court on your behalf during lockdown.

At Gibson Kerr, we understand it is an emotional time for anyone suffering the loss of a cohabiting partner. Our honest, practical advice can help you to decide whether to make a claim against the estate, and we can guide you through that process should you choose to proceed.

If you need help making a claim as a cohabitant, please do not hesitate to contact our personal law solicitors by telephoning 0131-202 7516 or 0141-404 0436.