Every day in Scotland, people pass away without having left a will. With an estimated 30 million adults across the UK not having a will in place, intestacy (the legal term for dying without a will) is a real problem. Unfortunately, many people are completely unaware of the difficulties caused by not having formalised their final wishes. And this can make life much harder for those left behind, at a time when they’re already grief-stricken and struggling to cope with their loss.
When someone passes away, their estate has to be administered by an executor. When a valid will is in place, there will be a named executor which could be a relative or a firm of solicitors. However, when no will has been left, the process is much more complex, which we’ll explain in more detail later in this article.
Where to start when someone dies in Scotland without a will
There’s an awful lot to think about and organise after someone has died. And for many people, having to deal with legal matters at a time of intense sadness can be difficult to cope with.
When there’s no will in place, the process becomes more complicated because of the two additional steps.
Step 1 - Apply for Executor to be appointed
Not having a will makes the process more onerous because someone has to apply to the court to have an executor appointed – this person is then known as an “executor dative”. This must be either be someone who is entitled to inherit a share of the estate under the intestacy rules or the deceased’s next of kin (which might not necessarily be someone entitled to inherit).
Step 2 – Bond of Caution
Once an executor has been appointed by the court, they have to get a Bond of Caution before they can then proceed to the next step. This is a type of surety or guarantee that the executor will settle all legitimate debts on the estate and will distribute the estate to the correct beneficiaries. The Bond of Caution has to obtained from an insurance company and they will assess the executor to establish if they are eligible for a bond and will charge a premium for the bond. The only time a Bond of Caution is not required is if the spouse of the deceased person is entitled to inherit the whole estate.
Once the Bond of Caution is obtained, the executor then carries on with the usual process of administering the estate and the next step would be to apply for Confirmation. A Grant of Confirmation is a legal document issued by the Sheriff Court giving the executors authority to uplift property belonging to a deceased person and to administer and distribute it according to law.
You can read more on how to obtain a Grant of Confirmation on the Scottish Courts and Tribunals website.
Additional costs and delays
These two steps add extra costs and delays while they are obtained through the court. Extra costs might be in the region of £500 – £1,000, but could be more than this, depending on how complex an estate is and the extra time could be in the region of two months.
Additionally, if there is no will, the estate falls to the nearest relatives in line with intestacy laws. The person dealing with the estate might have to trace these relatives and genealogy research may be required.
If beneficiaries cannot be located, or the family aren’t sure if they are alive or not, this can cause additional problems. It might be necessary to take out “missing beneficiary insurance” to cover the risk of a beneficiary turning up after the person has died. It might be necessary to keep aside the funds for them (possibly indefinitely).
A legal checklist for when someone passes away
Regardless of whether the deceased had a will or not, there are many necessary legal process to go through. Dying without a will only serves to make matters more drawn-out and complicated.
Registering the death
Registering the death of a loved one is a painful but necessary experience. Before you can do this, you’ll need to get the death certificate from the hospital or doctor and then make an appointment with your nearest Registrar of Births, Marriages and Deaths.
You ,may need multiple full extract copies of the death certificate for things such as closing the deceased’s bank accounts.
You will also need additional paperwork to take with you when you go to register the death.
Planning the funeral
Planning the funeral of a close friend or family member isn’t easy. When someone dies without a will or having communicated their funeral wishes, it becomes much more difficult.
There are important decisions to be made, including:
Type of service - should it be religious?
Cremation or burial?
Music to be played/hymns to be sung
Dealing with the estate
As mentioned above, if there is no will in place, administering an estate involves two additional steps in applying to the court to have an executor dative appointed, and obtaining a Bond of Caution.
If the deceased left a will, there will be a named executor and their wishes will be documented, so it’s more straightforward to make sure these are carried out.
Valuing the estate
The executor needs to carry out a number of duties before an estate can be wound up completely. These include:
Contacting all relevant companies to find out the value of assets held by the deceased in bank accounts, shares etc.
Get in touch with any companies/organisations the deceased may have owed money to e.g. credit cards, council tax.
Have any other assets independently valued e.g. properties
A great deal of patience may be required at this stage when you’re waiting for various companies to reply with the required information.
So what happens to the deceased’s money when there’s no will?
This depends on the individual’s circumstances and who their nearest relations are in terms of the laws of succession.
In many cases, because the deceased never documented what they wanted to happen with their assets, the people left behind are subject to a great deal of worry, uncertainty and in many cases anguish, as what they believed would be theirs is assigned by law to another beneficiary. For instance, many people would assume that if their spouse dies, they will inherit the whole estate, but this isn’t always the case and a share of the estate might pass to the parents and siblings of the person who has died; which leave the surviving spouse in financial difficulty.
There’s also the delay caused by having to go to court for the Executor Dative to be appointed and obtaining the Bond of Caution. This can result in the beneficiaries having to wait longer than expected for money which can cause financial difficulties when they’ve had funeral arrangements to pay for.
For many people, having to deal with an estate on their own and navigate the various legal processes is unwelcome and too stressful after going through a bereavement.
Here’s a quick recap of the main points:
When someone dies without a will, the laws of intestacy apply to the estate
It’s a longer legal process when there isn’t a valid will because of having to apply to the court for an executor to be appointed and obtain a Bond of Caution from an insurance company When intestacy laws are applied, it can cause a lot of upset for those left behind as they may not inherit what they expected to.
Waiting for the assets in an estate to be distributed can cause financial difficulties for those left behind
Many people are simply unable to cope with being the executor of an estate and need help from a law firm
Lindsay Maclean is a partner and head of personal law at Gibson Kerr - a legal firm in Edinburgh that deals with executries and intestacy matters.