If you’re about to buy a property or have just got the keys to your new home, it’s understandable you don’t want to think about death or disaster. You’re making an optimistic statement about the future, so why spoil the mood?
But whether you're buying your first flat or have worked your way up the ladder to your dream home in the West End, it’s a long-term (and major) financial commitment. Sandy Lamb, Partner in our Private Client team, urges you to consider what would happen to your family and your home if you died.
Scotland has rigid laws about who inherits your property if you die intestate (ie, without a Will), and these can have difficult consequences for your loved ones. Some key points to note:
- In most circumstances, a surviving spouse will inherit the matrimonial home. For most people, this is not a problem, but it could be more difficult if you have a blended family or are starting a new relationship. You would need a Will in order to address this.
- With blended families, you may want your half of the property to go to your children, but for your spouse or partner to have a right to stay there. That can only be guaranteed with a properly drafted Will.
- Cohabitees are especially vulnerable because they don’t have automatic rights to inherit property (unlike spouses and civil partners). While cohabitees can go to court to claim a share of the property, this is likely to be expensive and stressful, and carries no certainty of success. There’s also a time limit of 6 months.
This list isn’t exhaustive, and also isn’t hypothetical – these situations happen to real people every day. And whatever the outcomes, having to deal with unexpected issues regarding your property will come with legal costs, delays and stress for those left behind. Making a Will can provide the clarity and security to stop them arising.
No one wants to rain on your parade when you’re buying a property, but making a Will (or reviewing an existing one) is a lot less stressful than the legal issues that could hit your family if you don’t have one. So why not put it on the to-do list along with your other home-buying admin – such as insurance? It’s not going to bring you joy, but it sure will help protect the people you love.
Cohabitees should take care with the paperwork
Couples who cohabit don’t have the same automatic inheritance rights as spouses and civil partners. What happens to your home if one of you dies depends on what's in your title deeds.
Let’s say Conor and Caitlin move into a flat together. They’re not married and neither has made a Will.
Scenario 1: Caitlin has savings and buys the flat herself. If she dies before Conor, he’s left in a precarious position because he doesn’t own any share of the flat. If Caitlin wants him to inherit the flat, she should make a Will leaving it to him.
Scenario 2: Conor and Caitlin buy the flat together, and put in the title deeds that it’s owned by them and ‘the survivor of them’. This is known as a ‘survivorship destination’ and means that if one dies, the survivor inherits their share.
Scenario 3: Connor and Caitlin are both on the title deeds, but don’t have a survivorship destination. If one dies without a Will, their share goes to their family. The other would have to buy the family out, persuade the family to let them carry on living there, go to court to make a cohabitee’s claim or sell up. Again, this is a precarious position and could be avoided by having a Will.
Caitlin and Conor may rather open a celebratory bottle than discuss Wills and death. But these conversations – along with what would happen if they split up – are important. If you want to protect against a bad situation becoming even worse, Wills and Cohabitation Agreements are relatively simple solutions.
We would be happy to advise you on the best options for your particular circumstances, please do get in contact with our Private Client team.
You can read the full edition of the Glasgow Property Times here.
