Katrina Venters: Where there's a will, there's certainty

Failing to leave a will is not only distressing for those left behind but can also be hugely expensive, writes Katrina Venters

The musician Prince is one of many celebrities who died intestate, leaving his family to fight over his estate. Picture: Getty Images
The musician Prince is one of many celebrities who died intestate, leaving his family to fight over his estate. Picture: Getty Images

It is said that the singer Prince, who died in April, had written enough music to allow a new album to be released every year for the next century.

However, it remains to be seen whether any of this music will ever be released, as the one thing Prince seems to have failed to write is a will and already his family members would appear to be fighting over his estate.

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Prince joins a long list of celebrities who failed to write a will before their deaths and, as a result, died ‘intestate’ (without a will).

Long-running legal disputes between various family members will often follow an intestate death, which can not only be distressing for those left behind but can also be hugely expensive as legal costs mount up.

When no will can be found the law sets out certain rules as to how the estate is to be divided. These ‘intestacy rules’ will dictate the distribution of the estate to spouses and civil partners, as well as any children.

Where someone dies without a will, their spouse or civil partner will receive what are called ‘prior rights’ first, which include the family home if its value is less than £473,000 or cash of that amount, if the house is worth more, together with furniture within the house to a value of £29,000

Where the deceased leaves children, the spouse or civil partner will also receive cash of £50,000 upon which interest from the date of death is paid.

Where there are no children the cash element to the spouse or civil partner increases to £89,000 and the interest element also applies.

This of course could mean that in larger estates, the amounts laid down by the law by way of ‘prior rights’ might not exhaust the total estate left, and in smaller estates, that the spouse or civil partner might scoop the lot, leaving nothing for the children.

Should any balance be left over, this is then distributed amongst any spouse or civil partner and children in satisfaction of what are known as their ‘legal rights’ on intestacy.

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However, in certain situations it might be that the deceased left neither spouse, child, nor civil partner, but instead left a partner with whom he resided.

The position is that in Scotland, cohabitees do have certain rights on the death of their partner, if their partner dies without a will.

Following a partner’s death, a cohabitee does in fact have a six-month period in which to make a claim on their partner’s estate provided their partner, of course, has died intestate (without a will) and that they were co-habiting at the time of the death. The court will then determine which assets should pass to the surviving partner.

In the case of Prince, he appears to have left neither partner nor child but only siblings and half siblings, who appear to be currently arguing over the estate.

Some people assumed that his sister of the full blood would be the only beneficiary on his estate but it is understood that under the law of Minnesota his half siblings and full siblings are treated exactly the same and all share equally.

This situation would appear to be different to that of the law of Scotland. Here the legal position is that if a person dies without a will and without a spouse/civil partner or child, then any surviving parents of the deceased and brothers and sisters of the full blood would come before any half siblings.

Obviously different countries have different succession rules and Scotland is no exception.

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However, interestingly, the rules of succession in Scotland are currently in the process of being updated for the first time in 50 years.

Although many of the provisions which relate to intestacy have not yet come into effect, the new Succession (Scotland) Act 2016, part of which came into force on 4 March 2016, is intended to clarify the situation with intestacy further and to make things a little fairer and simpler in this area.

That said, it is easy to see that the main consequence of dying intestate is that the law, and not the deceased, determines not only who will inherit but also the amounts of that inheritance.

What also becomes clear is the importance of having a will and the certainty that it can bring over intestacy.

• Katrina Venters is a private client solicitor at Russel + Aitken LLP