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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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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.

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.

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 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 (if the value of the property is less, this right is capped at the value of the property)
  • 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)
  • 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. 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, 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 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 grants this will depend on the couple's particular circumstances and the size of the 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. 

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’s 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:

  • parents and siblings

  • spouse or civil partner

  • uncles and aunts

  • grandparents

  • brothers and sisters of grandparents

If there are no surviving relatives whatsoever, the Crown will take the whole estate. 

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