Intestacy rules in Scotland

This information only applies in Scotland.

Many people will choose to make a will so that they can specify how their assets, such as savings, property and shares, will be distributed to people and causes that they care about after they die. If someone dies without making a will, this is known as dying 'intestate'. In these cases, a set of default legal rules are used to decide who should inherit what. These are called the rules of intestacy.

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What do the rules of intestacy say?

Intestacy rules are complicated and can be confusing. There are a number of stages to go through, with different shares of the deceased's estate being shared amongst different people depending on their circumstances and the make-up of their family.

Paying off debts

Before any decision can be made about who should get what share of the estate, any debts that the deceased owed must be paid off. It is the job of the executor to ensure this is done. The assets left over will then be shared amongst the beneficiaries.

Defining the assets

Different types of assets are treated differently. The first step is to split the estate into two groups:

Moveable estate – this is assets such as money, shares, cars, furniture or jewellery

Heritable estate – this is any land or buildings owned by the deceased

Prior rights and legal rights

Certain beneficiaries have rights to claim from the estate. These rights are called ‘prior rights' and ‘legal rights'.

Prior rights

Prior rights are held by the deceased's spouse or civil partner and are dealt with first. These are the rights to a share of a house, furniture and money. A spouse or civil partner can claim:

The deceased's share in a home up to the value of £473,000

Furniture and furnishings up to the value of £29,000

Additional cash up to the value of £50,000, or £89,000 if there are no surviving children

Legal rights

Legal rights are held by both spouses/civil partners and surviving children and relate to moveable property only. They are dealt with second, after prior rights.

A spouse or civil partner is entitled to one-third of the remaining moveable estate if the deceased left children, and one half if they did not.

Children are entitled to one-third of the remaining moveable estate if the deceased left a spouse or civil partner, and one half if they did not. These shares are to be split amongst the children. If the deceased left a spouse and three children, the children would take a one-third share and divide it equally between them.

Cohabitant’s rights

If the deceased left a partner who they were living with as if they were husband and wife or civil partners, this person can apply to the Court for a share of the estate. Whether the Court grant this will depend on the couple's particular circumstances and the size of the estate.

The free estate

This is what is left over after prior rights, legal rights and the co-habitant's rights have been dealt with. This will be shared by the children equally. If there are no children, other family members can claim from the free estate in the following order:

  • Parents and siblings

  • Spouse or civil partner

  • Uncles and aunts

  • Grandparents

  • Brothers and sisters of grandparents

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Get advice about intestacy rules in Scotland

Speak to a lawyer today.