If you die without a valid Will in Scotland, you lose all say in what happens to your estate. The law steps in and distributes your assets according to a fixed set of rules under the Succession (Scotland) Act 1964, rules that may bear no resemblance to your wishes, and that can leave an unmarried partner, stepchildren or other loved ones with nothing. Making a Will is not complicated. Not making one can be.
Most adults in Scotland know they should make a Will. Far fewer actually get around to it. It is easy to assume there will be more time, or that the legal process will be complicated and expensive. In reality, making a Will is straightforward — and the consequences of not having one can be significant, particularly for families that do not fit the traditional mould.
When a person dies without a valid Will, they are said to have died intestate. In Scotland, intestacy triggers a specific legal framework that determines who inherits the estate, in what order, and in what proportions. That framework has been in place, in broadly similar form, since the Succession (Scotland) Act 1964, though important changes were introduced by the Trusts and Succession (Scotland) Act 2024. What the rules cannot do is reflect what you actually wanted. That is the job of a Will — and only a Will.
This article explains how the Scottish intestacy rules work, who benefits and who does not, and why, whatever your age or circumstances, making a Will is one of the most important legal steps you can take.
What does intestate mean and how common is it in Scotland?
Intestacy simply means dying without a valid Will. It is far more common than most people realise. Surveys consistently show that the majority of adults in the UK do not have a Will in place, and Scotland is no exception. People of all ages and circumstances die intestate every year, often unexpectedly, leaving their families to deal with an estate governed by rules they did not choose.
When someone dies intestate in Scotland, the law, not the deceased, decides everything: who inherits, in what proportions, and who has authority to administer the estate. The estate goes through a process called Confirmation (the Scottish equivalent of probate in England and Wales) before it can be distributed, and without a nominated executor in a Will, the family must apply to the court to have an executor-dative appointed instead, adding time, cost and complexity at an already difficult moment.
It is also worth noting that a Will can be straightforward and inexpensive to put in place. The complexity and cost of dealing with an intestate estate almost always exceeds the cost of making a Will in the first place. For guidance on getting started, our Wills and succession planning services page sets out what is involved.
Prior Rights: what a surviving spouse or civil partner receives first
The intestacy rules in Scotland operate in a specific order. The first call on an intestate estate comes from Prior Rights, the entitlements of a surviving spouse or civil partner, which take precedence over everyone else, including children.
Under the Succession (Scotland) Act 1964, a surviving spouse or civil partner is entitled to the following Prior Rights:
- The family home (or its value up to £473,000), provided the deceased owned it and it was used as the main residence
- Furniture and household contents up to a value of £29,000
- A cash payment of £50,000 where children survive, or £89,000 where there are no surviving children
Prior Rights are substantial, and in many estates they will exhaust the entire intestate estate before any other claims arise. It is important to understand that these rights apply only to spouses and civil partners, not to unmarried partners, regardless of how long the relationship has lasted.
Following the Trusts and Succession (Scotland) Act 2024, which came into force in April 2024, where a person dies intestate with no surviving children, their spouse or civil partner now inherits the entire estate. This was a significant change; previously, parents and siblings could take a share of the free estate ahead of the surviving spouse. The new rules are simpler in that respect, but the absence of a Will still leaves the distribution entirely to chance, determined by whoever happens to survive.
Legal Rights: what children are always entitled to under Scots law
egitim for children, and Jus Relictae or Jus Relicti for a surviving spouse, are a distinctive and important feature of Scots law. They represent the rights of certain family members to a share of the moveable estate (broadly, everything except land and buildings), and they apply regardless of whether the deceased left a Will.
Where a spouse and children both survive the deceased, Legal Rights entitle:
- The surviving spouse or civil partner to one third of the net moveable estate (after Prior Rights are satisfied)
- The children, between them, to one third of the net moveable estate
Where there is no surviving spouse, children are entitled to one half of the moveable estate between them. Where there are no surviving children, the spouse takes one half.
Legal Rights exist independently of the intestacy rules and can also be claimed against a Will. This means that even where a Will exists, children have a right to claim their Legitim from the moveable estate if they choose to, although doing so may mean giving up any legacy left to them under the Will. It is a right that cannot be signed away in advance, and it is one that families and solicitors need to consider carefully when drafting estate plans.
What happens to the rest of the estate?
Once Prior Rights and Legal Rights have been satisfied, what remains is known as the free estate. Under the rules introduced by the Trusts and Succession (Scotland) Act 2024, the free estate passes to surviving relatives in the following order of priority:
- Children (equally between them, or their descendants if a child has predeceased
- Surviving spouse or civil partner (if not already exhausted by Prior Rights
- Parents and siblings of the decease
- Other relatives, in an order prescribed by the Act
The practical reality is that in many estates, Prior Rights and Legal Rights will exhaust the moveable estate entirely before the free estate distribution even begins. But where a larger estate is involved, or where there are no close relatives, the free estate rules become highly significant — and the absence of a Will means that the deceased had no say in how it falls.
What if there are no surviving relatives?
If a person dies intestate and there are no surviving relatives entitled to inherit under the rules, the estate passes to the Crown, a process known in Scotland as bona vacantia. The King’s and Lord Treasurer’s Remembrancer (KLTR) is responsible for administering such estates on behalf of the Crown.
While this may seem unlikely, it is a genuine risk for people who have no immediate family, or whose relatives have predeceased them. A Will allows a person to leave their estate to whoever they choose, close friends, a charity, a cause they care about, none of whom have any entitlement at all under the intestacy rules.
Why unmarried partners, stepchildren and blended families face the greatest risk
Scottish intestacy law has made some significant progress in recent years, but it still fails to reflect the reality of many modern families. The groups most at risk from dying without a Will are those whose relationships and family structures fall outside the traditional hierarchy the law was built around.
Unmarried partners have no automatic right to inherit under the Scottish intestacy rules, regardless of how long they have been together or how financially intertwined their lives are. A cohabiting partner can apply to the court for a share of the estate under the Family Law (Scotland) Act 2006, but this is a contested, court-based process with no guaranteed outcome. Following the Trusts and Succession (Scotland) Act 2024, the time limit for making such a claim has been extended from six to twelve months from the date of death, a welcome improvement, but still a stressful and uncertain route compared to the certainty a Will provides.
Stepchildren, even those raised from infancy by the deceased, have no entitlement under the intestacy rules unless they were formally adopted. In blended families, this can produce outcomes that no one in the family would have chosen. A step-parent might inherit under Prior Rights in a way that leaves a deceased parent’s own children from a previous relationship receiving far less than intended.
Our recent article on moving in together as an unmarried couple explores the legal position of cohabiting partners in more detail. It is essential reading for any couple who live together without being married.
The only reliable way to ensure that the people you love, in whatever configuration your family takes, are provided for after your death is to make a Will. There is no substitute.
Why Choose Pomphreys?
Pomphreys has been helping families across Wishaw, North Lanarkshire and the surrounding area to plan their estates for generations. Our private client team has the knowledge and experience to guide you through making a Will in a way that is clear, straightforward and tailored to your personal circumstances.
We take the time to understand your family, your assets and your wishes — and we make sure that your Will reflects them accurately. Whether your estate is straightforward or involves more complex considerations such as blended families, property abroad or business interests, we will explain your options clearly and advise you on the best approach.
If you would also like to put Powers of Attorney in place at the same time, something we would always recommend, we can deal with both in a single appointment.
Speak to Pomphreys today to arrange a friendly, no-obligation conversation about making your Will. Call us on 01698 373365, or use our online contact form and we will get back to you promptly.
Frequently Asked Questions about Dying Without a Will in Scotland
Does my spouse automatically inherit everything if I die without a Will in Scotland?
Not necessarily, and it depends on whether you have surviving children. Following the Trusts and Succession (Scotland) Act 2024, if you die without a Will and have no surviving children, your spouse or civil partner will now inherit your entire estate. However, if you have children, the position is more complex. Your spouse is entitled to Prior Rights first, the family home up to £473,000, furniture up to £29,000, and a cash payment of £50,000. After that, both your spouse and your children have Legal Rights to fixed shares of your moveable estate. Whatever remains as the free estate then passes to your children before your spouse. This can result in outcomes that neither party would have chosen, and it is one of the many reasons why making a Will is so important.
What are Legal Rights and can they be claimed against a Will?
Legal Rights are a fixed entitlement under Scots law that cannot be removed by a Will. Children have a right called Legitim, a claim to a share of the deceased’s moveable estate (everything except land and property). If a spouse or civil partner survives, the children share one third of the moveable estate between them; if no spouse survives, they share one half. A surviving spouse or civil partner has an equivalent right (Jus Relictae or Jus Relicti) to the same proportions. These rights apply on intestacy and can also be claimed against a Will, though a beneficiary who claims Legal Rights may have to give up any legacy the Will has left them. A well-drafted Will can take Legal Rights into account and help manage how they interact with the rest of the estate.
Does a cohabiting partner inherit anything if there is no Will in Scotland?
No, not automatically. Unlike a married spouse or civil partner, an unmarried partner has no automatic right to inherit under the Scottish intestacy rules, regardless of the length of the relationship. A cohabiting partner can apply to the court for a share of the estate under section 29 of the Family Law (Scotland) Act 2006, but this is a contested, court-based process with no guaranteed outcome. Following the Trusts and Succession (Scotland) Act 2024, the time limit for making such a claim was extended from six to twelve months from the date of death. Even so, a court application is stressful, uncertain and potentially expensive. Making a Will is the only reliable way to ensure a cohabiting partner is provided for.
How long does it take to deal with an intestate estate in Scotland?
Dealing with an intestate estate in Scotland typically takes longer than administering an estate where a valid Will is in place. Where there is no Will and no nominated executor, the family must apply to the Sheriff Court to have an executor-dative appointed — a process that adds time and cost before the estate can begin to be administered. The full process, including obtaining Confirmation (the Scottish equivalent of probate), gathering assets, satisfying Prior Rights and Legal Rights, and distributing the free estate, can take many months, and sometimes longer where the estate is complex or where there are disputes. By contrast, where a Will is in place with a clearly nominated executor, the process is typically more straightforward and considerably faster.
This article is by Joe Rowan
Joe Rowan, Assistant Solicitor
Joe Rowan is an Assistant Solicitor at Pomphreys, Solicitors, Wishaw, based in our Kenilworth Avenue office. After years as a legal advisor with a football club, Joe decided it was time to get back into mainstream law, preferably in a conveyancing or private client role, areas of law he’s always enjoyed. Happily, for Joe, such a position became available at Pomphreys around the same time, and he was delighted to become part of the firm.
Tel: 01698 373365
Email: jr@pomphreyslaw.com
