Intestacy — what happens if you die without a will in Scotland?

If you want full control over who gets what when you die, a will’s the way forward, but if there isn’t one when you pass, there is a set order of how your assets are inherited, with your closest relatives likely to benefit most.

That said, there’s a significant change to that order coming shortly which could see certain loved ones, including cohabitants, inherit — in certain circumstances — far more than they do under the current rules.

Let’s take a look.

Where do we start?

The first thing we need to know if you die without a will is who, if anyone, is left behind.

Is there a spouse or civil partner? Did you have any children? Are you parents still alive? Do you have any siblings? 

Where there is no will it is usually the people closest to the deceased who inherit, in a set order — the first of which are prior rights.

What are prior rights?

There are three prior rights for a surviving spouse or civil partner.

The first relates to the home where any surviving spouse or civil partner lives. Sometimes ownership transfers automatically, but if it doesn’t then the deceased’s share, currently up to a value of £473,000, will be made over. The process if the share is above that value is more complex, with the spouse or civil partner receiving a cash payment and the house itself “falling back” into the estate pot.

There is a second prior right relating to home furnishings, up to a value of £29,000. Furnishings above that figure will be dealt with as part of the rest of the estate,

The final prior right is entitlement to a cash sum.

The value here depends on whether you had any children. If there aren’t any, the sum is currently £89,000, but if there are, the spouse or civil partner receives £50,000.

Given the estate’s value, it may be the spouse or civil partner receives everything; however, if there is anything left, the next stage is to calculate legal rights.

What are legal rights?

Legal rights are calculated as a share of the deceased’s movable estate (i.e. cash assets, not property) and, again, are shared differently depending on whether you’re survived by a spouse or civil partner as well as any children.

If it’s both, the movable estate is divided three ways with the spouse/civil partner and children both receiving a third and the remainder passes to what’s called the free estate.

If someone is survived only by a spouse or civil partner or only by children the movable estate is divided two ways — the surviving loved one gets half, the other half passes to the free estate.

What is the free estate?

The free estate comprises everything left over once prior and legal rights are settled.

There is a fixed order of who receives what from the free estate, what’s more, later this year there will be a significant change.

Both now and after the change you work through the list of who could inherit in order.

The rules initially assumed when someone died without a will they’d want their own family, rather than their spouse or civil partner’s family to benefit.

As such, where there are children, they are the first in line.

If there are no living children, the right passes down to the next generation so grandchildren and other direct descendants would also be included.

The current rules then state the next in line are parents and siblings. If there are both, parents and siblings would each share a half. Any nieces and nephews essentially step in if their parent (a sibling of the deceased) has died beforehand.

Where there are only parents or siblings then they would share the free estate between them.

There is a distinction made between full siblings and half siblings: full siblings are given priority, and half siblings only inherit if there aren’t any of the former.

If there are no parents, siblings or their descendants, the spouse or civil partner comes next.

Changes to the rules

Much of the current legislation dates back 60 years or so — and, as we know, the family make-up in Scotland has changed significantly since then. Not least with the introduction of civil partnerships for same sex couples in 2005.

The new rules for the free estate set to come into force shortly are designed to better reflect the way we live now.

The order of succession is changing and, for deaths after the change, the spouse or civil partner will come before parents and siblings, but still after children or other direct descendants.

After these close relatives you then look further afield, to the deceased’s aunt and uncles, grandparents, siblings of grandparents and then working back through each generation above that.

That said, because the children of a beneficiary who has died step into their parents’ shoes, we don’t often have to go that far back to find someone.

Impact of the change on family law matters

The change will impact on matters our family law team deals with. 

With the spouse or civil partner moving up the order, if you are in the process of separating then you really should put a will in place as soon as possible so your partner doesn’t inherit if you don’t want them to. Remember, the separation process can take time to complete.

The other area with a significant change relates to cohabitants.

If you live with someone but die without a will, your cohabitant could receive more under the new rules than they would now.

How much cohabitants can claim isn’t always clear — but it won’t be more than a spouse or civil partner would receive.

There is a formal process to follow, and the timescale is tight. It isn’t an automatic right, and your cohabitant will have to make a claim against the executor.

The period to make a claim is currently six months from date of death, and sometimes the process of dealing with an estate might not have got very far by that stage. Knowing who the executor is, if one has even been appointed, can be difficult.

A cohabitant who has recently lost their partner may not be in the best frame of mind but, given the very strict time limit, they should take legal advice as soon as possible to make sure they don’t lose out.

As you can see, there’s a detailed process in place to determine who inherits your estate when you die.

However — as you’d expect us to advise — making a will is an important part of ensuring as much of your money, property, possessions, and investments go to the people and causes you care about when you die.