Intestate Succession

Family and Child Law Notes

Intestate Succession

  • Definition: Estates fall into intestacy when someone dies without a will. Estates can also fall into a category termed 'partial intestacy'.

  • Governing Legislation: The law on intestate succession in Scotland is mainly outlined in the Succession (Scotland) Act 1964 (S(S)A 1964). This Act was a progression following the Mackintosh Report of 1951.

The 5 Stages of Intestate Succession

  • Initial Step: Before any distribution occurs, debts and taxes of the deceased must be paid first.

  • Stages of Distribution:

    1. Prior rights

    2. Relict’s right (including civil partner’s right)

    3. Cohabitant’s right

    4. Legitim

    5. Free estate

Prior Rights

  • Definition: Prior rights are exclusive to the intestacy context and pertain solely to the rights of the relict (the surviving spouse or civil partner).

  • Components of Prior Rights: There are three main aspects:

    1. Right to the dwellinghouse

    2. Right to plenishings (contents/furnishings)

    3. Financial provision

Right to the Dwellinghouse

  • Legal Reference: Governed by S(S)A 1964, section 8.

  • Key Conditions: The relict has a claim to a dwellinghouse in which they were 'ordinarily resident' at the time of the deceased's death.

    • If the deceased possessed a 'relevant interest' in the dwellinghouse, that interest transfers to the relict.

    • Current value limit is up to £473,000. The value is assessed by deducting any debts secured on the property.

  • Example Scenarios:

    1. Robert and Fraser's Home:

    • Home's Value: £300,000

    • Outcome: Robert inherits the house.

    1. Robert and Fraser's Home (Higher Value):

    • Home's Value: £600,000

    • Outcome: Robert does not inherit the house but is entitled to £473,000. If desired, executor may agree to transfer the house for £127,000.

Right to Plenishings

  • Legal Reference: S(S)A 1964, section 8(3).

  • Key Provisions: The relict has rights to the furniture and plenishings within the dwellinghouse, capped at a set value (currently £29,000).

    • If total value of possessions is less than £29,000, the relict inherits all.

    • If over, the relict can select items up to £29,000 in total value.

Financial Provision

  • Legal Reference: S(S)A 1964, section 8.

  • Determining Values: The financial provision amount depends on the presence of 'issue' (descendants) left by the deceased.

    • If no issue, value is capped at £89,000.

    • If there are issue, value is capped at £50,000.

    • The financial provision is deducted proportionately from both the heritable and moveable estate.

Illustrative Example of Prior Rights

  • Subject: Alice dies intestate, survived by her husband Ben and their two children (Linda and Mark).

  • Asset Details:

    • Primary dwelling house: £300,000 (owned in common with Ben, no survivorship clause).

    • Secured loan against dwelling: £40,000.

    • Contents value: £40,000 (jointly owned).

    • Rental flat owned solely by Alice: £100,000.

    • Investments held by Alice: £150,000.

Relict’s Rights

  • Overview: Two legal rights exist: the relict’s right and legitim.

  • Prioritization: In testate (with a will) succession, these rights rank equally after debts and taxes. However, in intestate succession, legal rights are subordinated to prior rights.

  • Special Note: While legitim is postponed to cohabitant rights, relict’s right does not have the same consideration.

Cohabitant’s Right

  • Nature of Rights: As previously noted, the term 'right' could be seen as misleading.

  • Legal Framework: Cohabitants can seek awards under the Family Law (Scotland) Act 2006, section 29. However, these awards are discretionary.

    • Notably, an order shall not result in an award exceeding the amount that would have been conferred if the survivor had been the spouse or civil partner of the deceased.

Legitim

  • Definition: This right also pertains to monetary entitlements.

  • Clarification Needed: Specific amounts allocated for legitim awards were not detailed but are crucial knowledge.

Free Estate

  • Definition: The term 'free estate' describes what remains of an intestate estate after accounting for the satisfaction of prior rights, legal rights, and cohabitant’s right.

  • Clarification: It's possible for no free estate to exist after all prior claims are met. If no relict, cohabitants, or legitim claims are made, the entire estate is classified as free estate.

  • Legal Reference: S(S)A 1964, section 2 details who can inherit the free estate, with amendments noted in the TS(S)A 2024.

Ultimus Haeres

  • Definition: The term refers to the Crown as the ultimate heir (Ultimus Haeres). In cases where no relatives can be determined or traced, the estate reverts to the Crown.

Next Session

  • Anticipation: The upcoming session will focus on calculations related to intestate succession.