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On 16 August 2018, Aretha Franklin sadly passed away following a long battle with pancreatic cancer.

It is estimated that the ‘Queen of Soul’ left behind an estate worth approximately $80 million. Despite her large fortune, Franklin left no Will behind to manage her estate after her death.

As Franklin died unmarried, her estate will be divided equally between her four children in accordance with Michigan state law.

What is the situation in Scotland?

In Scotland, if an individual dies without leaving a Will, then the law decides who is to inherit the estate.

The first step is to have an Executor appointed by the court. This will normally be a surviving spouse or civil partner. If there is no spouse or civil partner, then this will be a surviving child, if any, or another person entitled to inherit from the estate such as a parent or sibling.

If an Executor is appointed by the Court then a Bond of Caution may be required. This is a type of insurance policy against the Executor to ensure that they distribute the estate correctly, which is an additional cost and delay to the estate.

If leaving behind a spouse or civil partner, they will have a right to a share of the estate after all debts and liabilities have been paid. Surviving children would also be entitled to share in the estate. This is called Legal Rights and is applicable regardless of whether a Will was made or not.

Legal Rights applies to the moveable estate (which is generally everything excluding land and buildings). The law stipulates that anyone with a legal entitlement has 20 years from the date of death to make a claim against the estate.

If the estate is distributed in terms of Scots law then there may be unintended consequences. The estate may be distributed in a way that the deceased would not have wanted and this may cause unnecessary distress for family members and loved ones left behind.

Additionally, if there is no Will in place then it is likely that the estate has not benefitted from estate planning and therefore may not maximise tax exemptions.   

We therefore recommend that everyone has a Will put in place to ensure that someone they trust will be responsible for managing their estate after their death. This would also give peace of mind that the estate would be dealt with in accordance with the individual’s wishes.

If you wish to wish to prepare a Will, or receive estate planning advice, you can get in touch with one of our specialist solicitors on 0800 089 1331 who will be able to provide you with clear, detailed advice.

Blog by Laura Kerr, Trainee Solicitor

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