February 2012 – Death Where There is no Will – Who Gets What?

Author: scott
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  • If someone dies without leaving a will the law lays down who inherits the deceased’s estate. One of the most important aspects of these rules covers the rights of a surviving spouse or civil partner. The rights are threefold. They relate to: the deceased’s house; furniture and furnishings; and the right to a cash sum.
  • These rights are met out of the deceased’s estate first and foremost. So they are called ‘prior rights’. It is only if there is anything left over after these prior rights are satisfied that the deceased’s children inherit anything. If there are no children or remoter descendants then anything left over after prior rights goes to other relatives of the deceased in a strict order of preference.
  • Financial limits are laid down in relation to each of the three categories of prior rights. As from 1st February 2012 these limits have been increased – significantly so in relation to the deceased’s house. As from 1st February these limits are:
    • In relation to the deceased’s house: £473,000; o In relation to furniture and furnishings: £29,000; and o In relation to the cash rights: £89,000 if the deceased left no descendant but, if the deceased left any descendant, the limit is £50,000.
  • These are significant amounts of money. And the increase of the limits to these levels sparked some criticism. For example an article in the Scotland on Sunday newspaper on 1st January (anticipating these changes) was headed ‘Legal change will rob thousands of their inheritance’. The article’s criticism focused, not unsurprisingly, on the fact that the prior rights limits were now so generous that in most cases a surviving spouse or civil partner would take the whole estate leaving nothing for the deceased’s children.
  • In practice that might not matter too much in cases where the family comprised the wholly traditional ‘Mum, Dad, and two kids’. In that case if Dad dies and Mum inherits all by virtue of her prior rights the ‘two kids’ may well feel that is as it should be and they will, in any event, expect to inherit the combined estates of ‘Mum and Dad’ on the second death.
  • But the main criticism of the generous levels of prior rights entitlements is directed at the fact that the wholly traditional ‘Mum, Dad, and two kids’ set-up is less and less common these days. Family life is rather more fluid and an increasing number of families are ‘reconstituted’ through second marriages resulting in step-parent and step-sibling relationships. In that sort of situation the generous levels of prior rights may have unpopular results. An example can illustrate the point.

Example 1

Suppose Janet and John are married and have two children together.

  • After decades of a happy marriage John dies without leaving a will.
  • Janet inherits all his property by virtue of her prior rights.
  • Some while later Janet remarries Mr Bloggs – who himself has two children by a former marriage.
  • Sadly, Janet dies within a year of her remarriage without leaving a will.
  • Mr Bloggs inherits all Janet’s estate (which includes what she had inherited from her first husband) by virtue of his ‘prior rights’ in her estate.
  • Later still Mr Bloggs dies without a will whereby the combined estates of Janet and John and Mr Bloggs all go to the two Bloggs’ children to the exclusion of Janet and John’s children who get nothing.
  • It is that sort of situation which attracts criticism of a system where, by virtue of the generous levels of ‘prior rights’, children may be wholly excluded from any benefit in their parents’ estates.
  • It has to be said however that the system we have does not persist because the plight of Janet’s and John’s children has simply never occurred to our law-makers. The difficulty is in devising a system which is straightforward so that everyone can understand and apply it and is also going to function acceptably in every case. Put broadly the lawmakers’ stance is that a system designed to accommodate every twist and turn of the wide variety of today’s ‘reconstituted families’ would be highly complex – or would require the intervention of the courts with all the delay and expense that would involve. So it is preferable to have a relatively simple system which confers ‘prior rights’ on a surviving spouse or civil partner by virtue of their status as such. And the lawmakers remind us that this system is only a ‘default’ system: that is to say the system only applies in those cases where someone does not leave a valid will.
  • Some of the difficulties in devising a system that satisfactorily accommodates all the twists and turns of different families can perhaps be indicated if we reformulate the facts from Example 1 above:

Example 2

  • Suppose Janet and John were married; quickly had a child Janetta; soon after John died without a will and Janet inherited his whole estate by virtue of her prior rights.
  • A year or so later Janet marries Mr Bloggs who has two grown-up children from a former marriage.
  • Janet and Mr Bloggs are happily married bringing up Janetta together.
  • Disaster strikes the hapless Janet again and Mr Bloggs dies without leaving a will and Janet inherits his estate by virtue of her prior rights.
  • In this case Janet’s becoming entitled to the combined estates of both her first husband John and Mr Bloggs to the exclusion of both Janetta and Mr Bloggs’ own two children seems less startling than the result in Example 1. But it would probably be difficult to find a general consensus as to how exactly the estates should have been divided amongst all those involved Example 2. And it would not be difficult to conceive of cases where the combination of circumstances led to more lively debate about who should have got what. The law-makers’ stance is that there is no clear set of principled rules by which that can be done given the almost infinite variety of circumstances which may be involved in re-constituted families.
  • Having said something in defence of the law-makers it is curious that, under Scots law, a person can never wholly disinherit his or her children under a will: whatever the will may say a child is entitled to a fixed share in their parents’ estates by virtue of what are called ‘legal rights’. And yet, if someone does not leave a will but is survived by a spouse or civil partner, it is highly likely that children will be wholly disinherited owing to the generous levels at which ‘prior rights’ are set.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Neil Mackenzie, njm@mitchells-roberton.co.uk

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