Not leaving a Will can have unintended and unexpected effects.

In December the Scottish Government announced significant increases in the amount a widowed spouse or civil partner can potentially claim when the other person in the relationship (hereinafter called the "spouse" for short) dies without having made a Will. Prior Rights in intestate estates are to be increased for deaths after 1 February 2012 with the aim of restoring the value in real terms to when the limits were last set by Parliament in 2005.

The right to inherit a late spouse's interest in the family home has been increased from a maximum of £300,000 to £473,000. This is to reflect the original intent of the legislation, which is that, in all but exceptional circumstances, the surviving spouse should be allowed to remain undisturbed in the family home. When the limit was last set in 2005, the figure of £300,000 was chosen as it was approximately three times the average house value. The limit of £473,000 was calculated using the increase in the value of the average Scottish house between 2004 and 2009. Some people have criticised this decision on the basis that the house value data used excludes the last couple of years, during which house prices have fallen.

The right to furniture and plenishings has increased from £24,000 to £29,000 and the cash right has been increased from £42,000 to £50,000 if the deceased left children, and from £75,000 to £89,000 if there are no children.

Some experts claim that the increases threaten to affect the financial position of thousands of Scottish families. Each year approximately 17,000 homeowners in Scotland die without making a Will. Figures suggest that 25% of these individuals will be on their second marriage. The legislative changes have led to accusations that thousands of children could be robbed of their inheritance where their parents have remarried and died without making a Will.

In most intestate estates the Prior Rights of the surviving spouse will exhaust the estate, so if a married parent leaves no Will nothing is left for the children. This may not pose any controversy in a nuclear family when the children might well wish their surviving parent to inherit the whole estate and they would subsequently inherit on the second parent's death. However where, say, two people who are widowed or divorced with their own children marry and do not leave a Will, the survivor of them would be entitled to Prior Rights. The children of the first marriage would most likely not inherit and on the death of the second spouse, his or her children would inherit everything. Once Prior Rights have been met, the estate is subject to the so-called "legal rights" of the surviving spouse and children, though the rules about these are not affected by the recent change.

An increasing number of couples never marry but remain as cohabitants throughout their life together. The Family Law (Scotland) Act 2006 enables a surviving cohabitant to make a claim on their deceased partner's estate if he or she died without leaving a Will. The Act sets out a list of factors which the court must take into account when considering a cohabitant's entitlement. Any award is made out of the 'net estate' and this is defined as the estate after debts, Inheritance Tax and Prior Rights have been paid. A cohabitant cannot receive any more than a surviving spouse or civil partner. The significance of this is that even in an estate which is not exhausted by Prior Rights, a claim by a surviving cohabitant has priority over any children's rights to the estate. This can all be avoided by making a Will.

Whether or not this recent legislative move is welcome, it is a valuable reminder that everyone should make a Will to reflect their own individual circumstances and wishes. Having a valid Will in place allows property to be distributed in accordance with a person's own wishes and addresses any potentially complicated issues, such as the succession rights of children from a previous relationship.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.