When someone dies in Scotland without a valid will, they are said to die "intestate", and the law decides who inherits under the Succession (Scotland) Act 1964. A surviving spouse or civil partner has first claim through prior rights, then spouses and children share legal rights in the moveable estate, and whatever is left passes to relatives in a fixed order. Unmarried partners have no automatic right to inherit.
This guide explains the order step by step, what cohabitants can do and how someone is appointed to deal with the estate.
Step one: prior rights for a spouse or civil partner
A surviving spouse or civil partner is entitled to prior rights. At the time of writing, these are:
- The house: the deceased's interest in the family home, up to £473,000, provided the survivor was ordinarily resident there.
- Furniture and furnishings: up to £29,000.
- A cash sum: £50,000 if the deceased left children or other descendants, or £89,000 if not.
These limits are set by statutory instrument and can change. In many modest estates, prior rights mean the spouse or civil partner inherits everything.
Step two: legal rights
Next come legal rights, which apply only to the moveable estate, such as money, shares, cars and belongings, not land or buildings:
- Spouse or civil partner: one third of the moveable estate if there are children, or one half if there are none.
- Children: one third shared between them if there is a surviving spouse or civil partner, or one half if there is not. If a child has died, their own children can take their share.
Step three: the free estate
Whatever remains, the "free estate", is divided in this order under section 2 of the 1964 Act, as amended:
- Children (and the descendants of any child who has died).
- The spouse or civil partner, if there are no children or descendants.
- Parents and brothers and sisters.
- Brothers and sisters, if no parents survive.
- Parents, if no brothers or sisters survive.
- Uncles and aunts.
- Grandparents.
- Grandparents' brothers and sisters.
- More remote ancestors.
- The Crown, if no relative can be found.
The Trusts and Succession (Scotland) Act 2024 changed this order so that a surviving spouse or civil partner now inherits the free estate ahead of parents and siblings where there are no children.
Example: a married man dies without a will, leaving a wife, two adult children, a house worth £250,000 and £120,000 in savings. His wife takes the house, the furniture and £50,000 under prior rights. From the remaining £70,000, she takes one third and the children share one third as legal rights. The final third, the free estate, goes to the children.
What about unmarried partners?
A cohabiting partner does not inherit automatically. However, under section 29 of the Family Law (Scotland) Act 2006, a cohabitant can apply to the court for a share of the estate. The deadline is strict: the application must currently be made within six months of the death. The Trusts and Succession (Scotland) Act 2024 extends this to 12 months once that change is in force. If you are in this position, take legal advice immediately.
Who deals with the estate?
Without a will, nobody is automatically the executor. A family member, usually the person with the strongest claim to inherit, applies to the sheriff court to be appointed as executor-dative. They must then obtain confirmation, the Scottish equivalent of probate, before they can collect in the assets. In many cases a bond of caution, a form of insurance, is also needed. This adds time and cost compared with an estate where a will names an executor.
Common problems when there is no will
- Unmarried partners can be left with nothing unless they go to court.
- Stepchildren have no right to inherit.
- Estranged relatives may inherit instead of the people the deceased was closest to.
- The process of appointing an executor is slower and more expensive.
Making a will avoids all of this. For help with an estate, or to make your own will, compare the leading wills, trusts and executry solicitors in Glasgow. Our guide to whether a parent can disinherit a child in Scotland explains how legal rights also apply where there is a will.
Frequently asked questions
Who inherits if there is no will in Scotland?
A surviving spouse or civil partner takes prior rights first, then spouses and children share legal rights in the moveable estate, and the remaining free estate passes to relatives in a fixed order, starting with children.
Does a wife or husband get everything if there is no will in Scotland?
Often, in modest estates, through prior rights to the house up to £473,000, furniture up to £29,000 and a cash sum. In larger estates, children also inherit.
Can an unmarried partner inherit without a will in Scotland?
Not automatically. A cohabitant can apply to the court under section 29 of the Family Law (Scotland) Act 2006, currently within six months of the death.
Do stepchildren inherit if there is no will?
No. Stepchildren who were not legally adopted have no right to inherit under the intestacy rules.
Who becomes executor if there is no will in Scotland?
Usually a close relative applies to the sheriff court to be appointed executor-dative, then obtains confirmation to deal with the estate.
What happens if there are no relatives?
If no relative entitled to inherit can be found, the estate passes to the Crown.
Conclusion
So, what happens if someone dies without a will in Scotland? The law decides who inherits: prior rights for a spouse or civil partner, legal rights for spouses and children, and a fixed order for the rest. Unmarried partners and stepchildren can lose out, and dealing with the estate takes longer.
Compare the leading wills and executry solicitors in Glasgow for help with an estate or to make a will.