Dying without a Will in Scotland means that you die “intestate” and therefore the Laws of Intestacy will determine how your estate is to be divided, as with the rest of the UK. Having a valid Scottish Will is the ONLY way to ensure that that your wishes are properly carried out after your death.

The fact of the matter is that if you have no valid Will in place and you are living together and unmarried then the surviving partner will get NOTHING, even if you have children together.

Also do not assume that if married then your wife/husband will get everything, this just isn’t so. This is determined by the Laws of Intestacy and there is a strict “pecking” order. It may mean that while getting part of the estate the surviving partner may not get the whole of the estate with that being awarded to children, siblings and parents.

Most people will want their immediate family to benefit and we all know of cases where brothers, sisters or parents do not get on and the thought of leaving any part of their estate to your estranged family would literally make the deceased turn in their grave! Unfortunately, if there is no valid Will in place then under the Laws of Intestacy this is what will happen. That is, distribute their estate to possibly estranged family members, not turn in their grave!


Let us look at how dying without a Will works in practice. The Courts will appoint an administrator who will administer your estate in accordance with the rules of intestacy. These are determined by a strict path as follows:

1. Prior Rights

Before any claims are made on the estate a surviving spouse or civil partner has certain prior rights to the deceased person’s estate where there has been no valid Will left. He or she is entitled to the dwelling house if they lived in it prior to their spouse’s death up to the value of £473,000 or the entire property if valued less than this. They are also entitled to furniture and furnishings up to the value of £29,000. The surviving spouse or civil partner is also entitled to £50,000 of any money left in the estate if the deceased left children, if there are no children then they are entitled to £89,000. The balance of the estate now falls into legal rights.


2. Legal Rights

After prior rights have been claimed, the surviving spouse, civil partner and children are entitled to certain legal rights. These legal rights apply to the “moveable” estate. Moveable estate is things such as money, furniture, jewellery, shares car etc. It does not apply to heritable estate which is land or buildings etc.

The surviving spouse or civil partner is entitled to one third of the deceased’s moveable estate if there are surviving children and they are entitled to one half of the deceased’s moveable estate if there are no surviving children.

The children are collectively entitled to one third of their deceased’s parents moveable estate if there is a surviving spouse or civil partner and they are entitled to one half of their deceased’s parents moveable estate if there is no surviving spouse or civil partner. In the event that the children predecease their parents and they would have had a claim, this can be claimed by their own children i.e. the deceased’s grandchildren.


3. The Remaining Estate also known as the Free (dead’s part) Estate

After prior and legal rights the remainder of the estate, with no distinction between heritable and moveable estate, is distributed within a strict “pecking” order. There is no splitting up of the estate, the whole of the remainder of the estate going to any surviving relative in that class and therefore precluding any surviving relatives further down the list.


The order of where the remainder of the estate passes to is as follows:

  1. Children take the whole
  2. Parents and siblings, half to parents have to siblings, divided equally
  3. Brothers and sisters take the whole
  4. Either or both parents take the whole
  5. Surviving spouse or civil partner take the whole
  6. Aunts or uncles take the whole
  7. Grandparents take the whole
  8. Brothers and sisters of any grandparents take the whole
  9. Ancestors remoter than grandparents, generation by generation successfully take the whole
  10. Finally, if no relatives are found, the Crown as ultimus haeres i.e. the Government, takes the deceased’s whole estate.

As you can see, it is vital that you formulate your wishes with a valid Scottish Will that directs the assets that you have worked so hard for your whole life to be given to your beneficiaries and loved ones when you are no longer here.

To receive qualified and ethical advice in relation to any aspect of your Scottish Will-Writing and Estate Planning requirements, please visit our contact page.