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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 (ie a person’s assets) 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

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 surviving 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 (also known as the ‘survivor’) can claim:

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

    • if the value of the property is less, this right is capped at the value of the property

    • if the value of the property is more, the survivor is entitled to £473,000 in money

  • furniture and furnishings up to the value of £29,000 (if the value of the household contents is less, this right is capped at the value of the household contents), and

  • the first:

    • £50,000 out of the estate if the deceased was survived by the survivor and children or descendants of children (eg grandchildren or great-grandchildren)

    • the first £89,000 out of the estate if the deceased was survived by only the survivor and no children or descendants of children

Legal rights

Legal rights are held by both surviving spouses/civil partners and surviving children and relate to moveable property only. This includes all assets, except land and buildings.

Legal rights 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 or descendants of 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. 

For example, if the deceased left a spouse and three children, the spouse would get one-third of the moveable property and the children would take a one-third share and divide it equally between them.

If a child would have had a claim to their parent’s moveable property but dies before them, their descendants (eg children or grandchildren) can make a claim. This is known as ‘representation’. For more information, see the Scottish Government’s guidance.

Cohabitant's rights

Under the Family Law (Scotland) Act 2006 cohabitants have certain legal rights.

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

Based on their findings, the court may grant cohabitants or former cohabitants a share of the deceased’s estate. The maximum the court can grant is what the cohabitant would have received if the couple had been married or in a civil partnership

The free estate

This is what is left over after prior rights, legal rights and the cohabitant's rights have been dealt with. Where the deceased left no surviving spouse or civil partner, this may be all the estate.

The free estate will be shared by the children (including adopted children) equally. Where a child of the deceased dies before them and is survived by their own children (ie the deceased’s grandchildren), the children will take the share their parent would have been entitled to. Where all deceased’s children have died before the deceased, the grandchildren will take the free estate.

If there are no children, other family members can claim from the free estate in the following order:

  • both parents and siblings (note that siblings and half-siblings can both inherit, however, if there are any full siblings, the full siblings will inherit and the half-siblings will not)

    • if both parents and siblings survive, the parents will inherit half of the free estate and the siblings will inherit the other half

    • only siblings if no parents survive 

    • only parents if no siblings survive

  • spouse or civil partner

  • uncles and aunts (on either parent’s side)

  • grandparents (on either parent’s side)

  • brothers and sisters of grandparents (on either parent’s side)

  • other ancestors (ie ancestors more remote than grandparents, eg great-grandparents)

If there are no surviving relatives whatsoever, the Crown will take the whole estate. For more information, read the Scottish Government’s guidance.

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