How do I deal with an estate when there is no Will in Scotland?

In Scotland, if someone died without a Will, then it’s usually the next of kin who would be responsible for dealing with their financial and legal concerns. But how is it decided who is the next of kin?

In this post, we are going to answer this question and more. We will give you simple and straightforward answers to help you understand what happens to an estate when there is no Will.

Here you will find:

• What happens to an estate when there is no Will in Scotland
• Who’s is considered the next of kin of the deceased
• The steps to take to get a Grant of Confirmation when there is no Will

What happens to an estate when there is no Will in Scotland?

Scottish law follows a set of rules known as the 'rules of intestacy' in the absence of a Will. These rules are set to determine how the deceased's estate will be distributed. 

They dictate who inherits and provide a structured framework for estate division. 

The UK government website hosts a helpful tool that can help you discover how the estate will be split based on these rules. 

The first question will ask you “Where was the deceased domiciled?” This usually means where their last permanent address was, although this can be up for some debate so get in touch if you have questions about this. If the answer is Scotland, it’s important that you make sure to check Scotland in the tool. The rules in intestacy are different in England, Wales and Northern Ireland, and Scotland. 

Understanding these rules is essential to be able to take the steps that we will lay out in the following section. Without understanding who will inherit the deceased's assets when there is no Will, it will be impossible to distribute the deceased’s estate.

Confirm the absence of a Will

The first step in managing an estate without a Will is to first confirm that there is no Will. 

It sounds obvious, but you might be surprised and find one. Simply because you are not aware of a Will, does not mean that it does not exist. 

Conduct a thorough search of the deceased's home, consult close family members, and reach out to any known solicitors. 

Consider if they have a safety deposit box in any banks or registrations with the Registers of Scotland or local Sheriff Court as these are also places people record their Wills. 

For an added layer of assurance, you can search the National Will Register. 

Confirming the absence of a Will is the initial step in understanding how to proceed in handling the estate with no Will under Scottish law. 

Assess the estate

Once you’re certain there is no Will, you can move on to an evaluation of the estate.

The first thing that you will need to complete this task is a death certificate. Many financial institutions will require you to show them this before they can share details of the deceased’s assets.

In addition, you will need to find the relevant account details for banks or other organisations where you believe assets are being held. 

You can then start to inquiries with various asset holders. 

You will want to build a comprehensive list of the estate's assets. This will include things like:

• Money in the bank
• Property
• Stocks or other investments
• Pensions
• Insurance policies

It’s also important to create a list of debts. This could be:

• Car loans
• Mortgage
• Credit card debt
• Outstanding utility or care home bills 

This proactive approach not only streamlines the probate process but can also significantly reduce legal fees if you find yourself needing or wanting to engage a solicitor. 

In cases where the deceased owned property or other assets, be prepared to navigate the potential requirement for a Grant of Confirmation (Scottish Probate) as it is often required by asset holders.

What is the order people inherit when there is no Will in Scotland?

The 'rules of intestacy' govern the distribution of the deceased's estate. 

These rules provide a structured framework to determine the rightful heirs and the respective shares they inherit. 

The hierarchy of inheritance is as follows:

1. Surviving spouse or civil partner

In the event of a surviving spouse or civil partner, they typically inherit the entire estate if there are no surviving children or other descendants.

2. Surviving spouse or civil partner with children

If there are surviving children or descendants, the surviving spouse or civil partner will receive a significant share called their 'Prior Rights, with the remainder divided among the children.

Prior Rights consists of the amounts shown in the government tool if you select a spouse and children.

3. Children or descendants in the absence of a surviving spouse.

In cases where there is no surviving spouse, the estate is divided among the surviving children or their descendants.

4. Parents

In the absence of a surviving spouse, civil partner, children, or descendants, the estate may pass to the deceased's parents. However, if there are also surviving siblings, the estate is split in two: half goes to the parents and half to the brothers or sisters.

5. Siblings

If there are no surviving spouses, civil partners, children, descendants, or parents, the estate may then pass to the deceased's siblings or their descendants.

6. No close relatives

If there are no surviving spouses, civil partners, children, descendants, parents, or siblings, the estate is distributed between more distant relatives and eventually to the Crown if no family can be found.

Can intestacy rules be challenged?

The short answer is no. 

These rules ensure a systematic and fair distribution of the estate based on familial relationships. 

These regulations are legally binding, providing a clear line of inheritance that guides the probate process when there is no Will in Scotland. 

Step-by-step guide: Apply for Confirmation without a Will

A Grant of Confirmation, also sometimes referred to as a Grant of Representation, or a Grant of Probate, is the legal document that gives authority to executors. You may need this to claim and distribute the deceased assets. 

How you go about applying for it will depend on the value of the estate. Using 'rules of intestacy' you will first find out who is the next of kin, and that person will be responsible for applying for Confirmation. 

Here are two guides for how to apply for Confirmation, based on the estates value. 

A. Estates worth less than £36,000

1.Contact the Local Sheriff Court

Begin by reaching out to the local Sheriff Court located locally to where the deceased resided.

In cases where the estate is worth less than £36,000, your local Sheriff Court will help free of charge in the Confirmation process

Schedule an appointment to discuss and initiate the application for Confirmation.

2. Prepare necessary information

Compile a comprehensive set of information based on the court's checklist, which may include details about the deceased's assets, debts, and other relevant documentation.

While not mandatory, compiling these details ahead of time accelerates the Confirmation application process.

3. Attend the scheduled appointment

Present the gathered information during the scheduled appointment with the Sheriff Court.

The court officials will ask you questions about the estate, so be prepared to discuss the details from the information you gathered.

4. Submit application

Following the appointment, submit the completed Confirmation application along with the necessary documentation.

Ensure all required forms are accurately filled out and submitted within the specified time frame.

5. Court review and decision

The Sheriff Court will review the application, verifying the provided information and documentation.

If satisfied, the court will issue the Grant of Confirmation, granting the legal authority to manage the estate.

6. Certificate of Confirmation

Your Grant of Confirmation will be provided. 

The court may provide additional Certificate(s) of Confirmation for each asset within the estate.

This certificate serves as proof of the executor's authority to access and administer the deceased's assets. 

7. Distribution of assets

With the Confirmation in hand, the executor can proceed with gathering the assets from the financial providers and distributing according to the rules of intestacy.

B. Estates worth more than £36,000

1. Apply for executor-dative appointment

Begin the process by filing an application with the court to be appointed as the executor-dative.

In Scotland, an executor-dative is an executor appointed by the Sheriff court in cases where a deceased person did not leave a valid Will.

My Probate Partner can provide this type of application with our No Will Probate Support Service.

2. Court assessment

The court will scrutinise the application, ensuring all necessary documents and information are accurate and complete.

The application will also be advertised for at least 2 weeks on the court website in case there are any objections.

3. Special insurance bond - 'Bond of Caution'

Buy a 'Bond of Caution', a specialised insurance bond required for estates exceeding £36,000. If the value of the estate exceeds £250,000 a bond will only be issued if a solicitor is managing the case.

This bond serves as a form of insurance to protect the beneficiaries against the estate not being distributed correctly.

Typically, you do not need a Bond of Caution if the surviving spouse inherits the entire estate.

4. Court decision on executor-dative appointment

The court will wait to see if there are any objections regarding the executor-dative appointment.

If approved, the court will grant legal authority to the appointed executor to apply for Confirmation.

5. Apply for Confirmation

With the legally appointed authority, you can now apply for Confirmation, using the C1 form. 

6. Distribution of assets with Confirmation

Once the application is accepted and the Grant of Confirmation is granted, the executor can proceed with the distribution of assets.

You distribute the assets in accordance with the rules of intestacy.

How do I deal with an estate when there is no Will: FAQs

Who inherits in Scotland if there is no Will?

In Scotland, the rules of intestacy govern inheritance when there is no Will. Typically, this follows a predetermined hierarchy that includes surviving spouses, civil partners, children, and other family members.

How long does probate take without a Will in Scotland?

The timeline for probate without a Will can vary, but it generally takes several weeks to a few months. Factors such as estate complexity, asset valuation, and which court is used can influence the duration.

How do you appoint an executor of an estate without a Will in Scotland?

In the absence of a Will, the court appoints an executor-dative. This individual has to be someone that inherits from the estate (which is usually a close family member), and the appointment process involves submitting an application to the court.

What is the Scottish law on deceased estates?

Scottish law, particularly the rules of intestacy, governs the distribution of a deceased person’s estate in the absence of a Will. These rules outline the hierarchy of inheritance among surviving family members.

What is the intestacy order in Scotland?

The intestacy order in Scotland determines the sequence of inheritance when there is no Will. Surviving spouses, civil partners, children, parents, and siblings follow a defined hierarchy based on legal regulations.

How My Probate Partner can help

At My Probate Partner, we understand the complexities and challenges that arise when navigating the probate process in Scotland, especially when there is no Will. Our Probate Support Service is tailored to provide comprehensive assistance to individuals dealing with estates of varying complexities.

As long as the estate is worth less than £250,000, our Probate Support Service should be a good fit to help you apply to be appointed as the executor, obtain a Bond of Caution, and successfully apply for Confirmation (Scottish Probate).