Cash Q and A: My husband left no will – is that likely to be a problem?

My husband died a few months ago and it is only now that I am coming to terms with the fact that I need to deal with his estate. He didn’t leave a will. Is that likely to be a big problem?

LW, Edinburgh

AWhere there is no will, then an application should be made to the sheriff court for the appointment of an executor, known as an executor-dative. A petition for the appointment of an executor-dative is lodged with the sheriff court according to the following order of priority:

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1 – Anyone who is entitled to inherit all or part of the estate, which usually includes a spouse or civil partner

2 – Next of kin

3 – The creditors

4 – Anyone entitled to a legacy from the estate

5 – The procurator fiscal

If the deceased did not make a valid will, the order of priority remains the same, except that the next of kin, or a surviving spouse or civil partner would have preference.

In the case of intestacy, the executor-dative must also obtain a “bond of caution” from an insurance company.

This is a guarantee made by the insurance company that the executor will distribute the estate in accordance with the rules of intestacy.

After funeral expenses, debts and liabilities have been paid, The Succession (Scotland) Act 1964 and common law determines the distribution of an estate in the event of intestacy or partial intestacy.

There are three categories:

1 Prior rights

You have the right to: Your husband’s dwelling house (or a share) up to a value of £473,000. A share of the furniture, furnishings etc up to a value of £29,000.

Cash up to a value of £89,000, if there are no surviving children or descendants of children or £50,000 if your husband was survived by children.

2 Legal rights

If the estate has not been exhausted by the satisfaction of your prior rights, then you are 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).

You can claim a 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, if any, can claim a one third share of the net moveable estate as you have survived your husband.

3 The free estate

This is the remainder of the estate after funeral expenses, debts and prior and legal rights have been settled. There is a specific order in which the remainder of the estate is distributed and you should take legal advice on this and all other matters raised above as intestacy is a complex area. This does not automatically pass to the surviving spouse if there are other surviving relatives.

• Laura King is a senior solicitor within the private client & 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.