What Happens in Scotland if You Die Without a Will?

When someone dies without leaving a valid Will, the law decides what happens to their estate. This is called dying intestate. In Scotland, the rules of intestacy are governed principally by the Succession (Scotland) Act 1964 and related legal principles. These rules determine how an estate is distributed, who is entitled to what, and the legal process involved, often with surprising results for families who expected everything to go automatically to their partner or children.

1. The Legal Framework: Intestacy Under Scots Law

Under Scots law, the rules of intestacy apply wherever:

• • There is no valid Will, or

• • A Will exists, but doesn’t deal with all of the estate (a partial intestacy).

• • These rules are set out in statute and are mandatory. You cannot choose who gets what if you die intestate. Executors are appointed to administer the estate, but how assets are divided is fixed by law. 

2. Administering an Intestate Estate

When someone dies without a Will, the first steps are:

• • Appointing an executor dative through the Court. This is the person legally entitled to deal with the estate.

• • The executor must lodge a Bond of Caution (pronounced Kayshun), a type of insurance that protects beneficiaries against mismanagement. This can be costly for intestate estates. A Bond of Caution isn’t required if the spouse/civil partner is inheriting the entire estate or if there is a Will.

• • Debts, taxes (including inheritance tax where applicable), and funeral expenses are paid before any assets are passed on.

This process can be complicated, time‑consuming, and more expensive than administering an estate with a valid Will.

3. Prior Rights: Spouse/Civil Partner Entitlements

Prior Rights are a statutory entitlement available to the surviving spouse/civil partner and are unique to Scots Law. These Prior Rights must be satisfied first (after payment of debts, before Legal Rights and before any legacies in a Will). The surviving spouse/civil partner can reject any legacy left to them in a Will and claim their Prior and Legal Rights instead.

The Prior Rights are:

• • Family home:  The surviving spouse/civil partner can take the deceased’s share of the house if they live there, up to a maximum value (£473,000 under current rules).

• • Household contents: Up to £29,000 of furniture and household items.

• • Cash sum: Up to £50,000 if the deceased had children; or £89,000 if there are no children. 

These rights apply regardless of whether or not there are living children or any other relatives. Depending on the size of the assets in an estate, Prior Rights can exhaust (use up) the entire estate leaving nothing for any surviving children (or other relatives if no children).

4. Legal Rights: Moveable Estate Shares

After Prior Rights, the surviving spouse/civil partner, and any children, may claim Legal Rights; another unique statutory right relating to the “moveable estate” only (e.g. cash, savings, investments, cars, jewellery), but not land or buildings:

• • Where there is both a spouse/civil partner and children, the surviving spouse/civil partner is entitled to one‑third of the moveable estate, and the children one‑third (divided equally between them).

• • Where there is a spouse/civil partner but no children, the surviving spouse/civil partner takes half of the moveable estate.

• • Where there is no spouse/civil partner, children take the moveable estate in equal shares.

Legal Rights are satisfied after Prior Rights and can significantly reduce what’s left for other relatives, and like Prior Rights, can exhaust the remaining estate.

5. The “Free Estate” and Distribution to Other Relatives

Once Prior and Legal Rights are satisfied, what remains is called the Free Estate. This is distributed according to a strict hierarchy, if there is no spouse/civil partner or children:

1. 1. Parents and siblings: If both survive, the estate is shared between them (e.g. half to parents and half to siblings).
   2. If no parents, siblings take the whole estate. 
   3. If no immediate family, more distant relatives such as uncles/aunts, grandparents, and beyond may inherit.
   4. Ultimus haeres: If no qualifying relatives are found, the estate passes to the Crown’s representative (the King’s and Lord Treasurer’s Remembrancer). 

This structured approach can place people you may not have expected, or intended, high in the inheritance line.

6. Who Doesn’t Automatically Inherit Under the Scots Law of Intestacy?

Importantly, certain people receive nothing automatically if there is no will:

• • Unmarried partners and cohabitants, no matter how long the relationship. An application to the Court for financial provision is needed within 6 months of the death under Section 29 of the Family Law (Scotland) Act 2006. This can be costly and the Sheriff has discretion over whether or not to award any sum, therefore, it is not guaranteed that they will.

• • Stepchildren and foster children, unless they’re legally adopted.

• • Friends, carers, and charities.

These groups have no automatic right unless provided for in a Will.

7. Why Having a Will Matters

Dying intestate often produces results that:

• • Avoid default rules that don’t reflect your wishes

• • Cause delays, disputes and increased legal costs

• • Leave loved ones financially unprotected (e.g. unmarried partners)

A clear, legally valid Will allows you to:

• • Appoint trusted executors to manage your estate

• • Decide exactly who gets what (subject to Prior Rights and Legal Rights if claimed)

• • Provide for people and causes you care about

Even basic estate planning can make a transformative difference for your family.

Ready to take control of your estate? At Kaur Sutherland, we specialise in Wills and Estate planning, guiding you through every step of the process with clarity and care. Get in touch today to ensure your wishes are protected and your loved ones are provided for.