What Happens to a Property When Someone Dies Without a Will in Scotland?
When a loved one dies without a will, the surviving family members are left to deal with a legal system they have never experienced. The intestacy system in Scotland is distinct from that in England and Wales (as set out in the Succession (Scotland) Act 1964) and can leave families shocked by what they have lost, believing they knew who would receive their assets. Property-buying companies like Cash For Property Scotland help families sell property sensitively. However, before any sales decision can be made, the legal process of determining who owns the property and who is authorised to act on it must be understood.
Prior Rights: The Starting Point
The intestacy rules in Scotland start with Prior Rights, only relevant where there is a surviving spouse or civil partner. Prior Rights include a right to the interest in the family home up to a certain amount, a right to furniture and furnishings up to a certain amount and a financial provision from the estate. These rights take precedence in the distribution of the estate and are intended to safeguard the surviving partner’s primary need for their home. If the property value is in the range of the thresholds, the surviving spouse may receive the entire property interest by Prior Rights before any other distribution is made.
Legal Rights and Their Scope
Once Prior Rights are met, the Legal Rights are activated. These provide an automatic right to a portion of the deceased’s moveable property (such as money, investments, and personal property, but not heritable property like land and buildings), to the surviving spouse or civil partner and to the deceased’s children. Where there is an estate consisting of both heritable property and movable property, there is a need for careful legal analysis as to how Legal Rights interact with the distribution of the property under the intestacy rules.
The Free Estate and Its Distribution
Anything that is left after the satisfaction of Prior Rights and Legal Rights is distributed in accordance with the statutory order of succession provided by the 1964 Act as the free estate. There is a clear hierarchy: a surviving spouse or civil partner will inherit if there is no surviving spouse or civil partner; children will inherit if no surviving spouse or civil partner exists; parents, siblings, and further blood relatives will inherit if no children or spouse survives. If the person dies without any surviving relatives in any of the statutory categories, the estate becomes bona vacantia, which goes to the Crown.
Confirmation Without a Named Executor
Where there is no will, there is no named executor with immediate authority to deal with the estate. Too gather the estate, pay debts and distribute the remainder, an executor-dative must make an application to the sheriff court for Confirmation. The executor-dative is appointed by the court, usually from among the surviving spouse or the children, who have the best interests of the estate at heart. This is a time-consuming, costly, and legal process that must be completed before any property in the estate can be sold or transferred. Until Confirmation is given, the property cannot be marketed effectively, as no one would have a legal right to market it if it is not confirmed.
Timescales and What to Expect
The time it takes to obtain Confirmation as executor-dative and to complete administration of an intestate estate will depend on the complexity of the estate and the efficiency of the process. Simple estates, where the beneficiaries are known and assets are not complex, can be settled in a few months. Complicated estates take longer, such as those with questions about who owns the property, missing beneficiaries, or properties that require attention before sale. Families that have thought they can get on top of the property immediately after bereavement are often surprised at the amount of legal process that needs to be taken before practical decisions can be put in place.
The Cash Buyer Option for Inherited Property
After the Confirmation is executed and the executor is given authority to sell, the question becomes how to sell an inherited property. In a conventional sale, the property must be prepared for sale, marketed, surveyed and go through a full conveyancing procedure. A cash buyer who sensitively purchases inherited and estate properties can close the deal much faster, without going through the preparation process that a regular sale requires, and with certainty that eliminates the uncertainty of an already emotional time. This is a viable option for beneficiaries who require their funds to be disbursed quickly or simply wish to end this phase of a challenging period in an orderly fashion, in addition to the more traditional option.
