Many people assume that if they die without a Will, their estate will pass to their closest family members. But dying without a Will - known as intestacy - can make dealing with an estate more complicated, time-consuming and expensive.

For loved ones already coping with a bereavement, this can mean additional legal procedures, professional fees and delays. It can also mean that your estate - everything you own - is distributed in a way that does not reflect your wishes.

Here are some of the less obvious costs that can arise when there is no valid Will in place.

The cost of appointing an executor

Where there is a valid Will, the deceased will have appointed an executor-nominate to administer their estate. However, if there is no Will then no such appointment has been made. Instead, a formal application must be made to the local Sheriff Court for the appointment of an executor-dative.

This process may be relatively straightforward where there is a surviving spouse or civil partner.

Where there is neither, complications can arise. Family members may disagree about who should administer the estate, leading to disputes, legal costs and delays. Making a Will lets you choose who will administer your estate and helps avoid the uncertainty of a court-appointed executor.

Bond of Caution premiums

One of the most significant and frequently overlooked costs associated with intestate estates in Scotland is the requirement to obtain a Bond of Caution (pronounced ‘cashun’).

A Bond of Caution is a form of insurance that protects beneficiaries and creditors against an executor's improper administration of the estate. Importantly, it does not protect an executor against fraud or deliberate misconduct.

Obtaining a Bond of Caution can take time and add to the cost of administering an estate. Insurers often require detailed information, including evidence that all potential beneficiaries have been identified. This may mean obtaining a verified family tree. For larger estates, premiums can be substantial — an additional cost that would not usually arise where there is a valid Will.

Tracing beneficiaries through a family tree investigation

In the absence of a Will, the beneficiaries of an estate are determined by the rules of intestate succession under The Succession (Scotland) Act 1964. Where there is any uncertainty about who may be entitled to inherit, the executor-dative has a duty to identify all potential beneficiaries.

This often means appointing professional genealogists or family-tree researchers to trace relatives and confirm the family history. These investigations can add significant expense and time to the administration of an estate. A valid Will, by contrast, clearly identifies the intended beneficiaries and can largely remove the need for this type of investigation. Legal Rights under Scots law continue to protect the interests of a surviving spouse, civil partner and issue.

Identifying assets and debts

Executors are responsible for identifying and valuing all assets and liabilities as at the date of death. If an executor-dative has little knowledge of the deceased's financial affairs, a professional asset search may be required to identify unknown bank accounts, pensions, investments and outstanding debts.

These searches can be essential to administering the estate correctly, but they also add to the cost.

What happens if you live together but are not married?

If you live with a partner but are not married or in a civil partnership, it is particularly important to understand how Scotland’s intestacy rules could affect you.

Unlike spouses and civil partners, cohabitants do not have automatic inheritance rights on intestacy. Instead, they must raise a claim under section 29 of the Family Law (Scotland) Act 2006 and rely on the court's discretion.

At present, such a claim must be made within six months of the date of death. Crucially, the court has no power to extend the time limit. Missing the deadline can result in a cohabitant receiving nothing from the estate.

The position can be even more challenging where the deceased was still legally married or in a civil partnership that had not been formally dissolved. In those circumstances, the surviving spouse or civil partner continues to enjoy Prior and Legal Rights, potentially leaving little or nothing available for a cohabitant's claim. Making a Will allows you to make provision for your partner, subject to any applicable Legal Rights, rather than leaving them to rely on a claim under the intestacy rules.

The financial consequences of intestacy rules

One of the most significant consequences is that your estate may not pass to the people you would have chosen.

Under the statutory rules of intestacy, distribution of an estate can be significantly different from what the deceased intended. In some circumstances, a surviving spouse or civil partner may receive considerably less than expected, creating financial uncertainty at an already difficult time.

Planning ahead can make things easier for your loved ones

Making a Will is about more than deciding who inherits your wealth. It can help protect your loved ones from uncertainty, additional expense and avoidable complications at an already difficult time.

If you would like to make a Will or review an existing one, we’re here to help you understand your options and put your wishes in place.