What happens to someone’s estate (money, property and possessions) when they die without a will? Angela McCulloch of Brodies LLP explains and clarifies the rules of intestacy in Scotland.
What is intestacy?
‘Intestacy’ is the term used to describe how a person's ‘estate’ (money, property and possessions) will be divided on death when the person does not leave a valid will choosing their beneficiaries, or where their will does not give away their entire estate.
The intestacy rules in Scotland are contained in the Succession (Scotland) Act 1964 (referred to as “the Act”). The Act provides how the estate of the deceased should be divided, and although it has been updated over the years - to include provisions for civil partners, for example - the legislation is now 56 years old and doesn’t necessarily reflect today's society and family relationships.
Find out more about intestacy rules in England and Wales.
What are the succession rules in Scotland when there is a surviving spouse or civil partner?
It is a common misconception that when one member of a couple dies, the surviving spouse or partner will inherit the deceased’s whole estate. When a person dies, and they are married or in a civil partnership at the time of their death, the intestacy rules in Scotland provide for the estate to be divided into three parts:
- prior rights (of the surviving spouse or civil partner)
- legal rights
- the free estate
What are ‘prior rights’ in Scottish intestacy rules?
‘Prior rights’ provide the surviving partner or spouse of an intestate estate with three rights:
- Firstly, the survivor is entitled to a housing right up to a maximum value of £473,000. The survivor must usually be resident in the property at the time of the death. If the value of the property is less than £473,000, the value of this right is capped at the value of the property.
- Secondly, the survivor is entitled to household contents, up to a maximum value of £29,000. Again, if the value of the household contents is less, the value of this right is capped at the value of the household contents.
- Finally, the survivor is entitled to a cash right. The value of this cash right depends on whether the deceased was survived by children. If the deceased was not survived by children, the survivor will receive a cash right of £89,000. If the deceased was survived by both the survivor and children, the survivor's cash right is reduced to £50,000.
What are ‘legal rights’ in Scottish intestacy rules?
‘Legal rights’, which apply on intestacy as well as when a person leaves a will, provide for the surviving spouse or civil partner and children to receive a fixed share of the moveable estate. This includes all assets, except land and buildings.
The share depends on who survives the deceased. If survived by a spouse or civil partner, and children, the survivor receives a third and the children receive a third, with the children's third to be divided equally among them. Where the deceased is survived by a spouse or civil partner only, they will receive one half. Where the deceased is survived by children only, they will receive one half, again, divided equally among them.
What is the ‘free estate’ in Scottish intestacy rules?
The remainder of the estate is known as the ‘free estate’. This is then divided in accordance with the terms of the Act in the following order:
1. Children and adopted children (if a child of the benefactor dies before them, and is survived by their own children, their own children will take the share their parent would have been entitled to). If all children have predeceased, grandchildren will take the free estate. The rules provide that where descendants survive, they should inherit.
2. The surviving spouse or civil partner will inherit the free estate if the deceased is not survived by descendants.
3. Parents and siblings will share the free estate if the deceased is not survived by descendants or a spouse or civil partner. The free estate is divided into two halves, with one half being divided between the deceased's parents, and the other half being divided among the deceased's siblings. For example, if the deceased is survived by both parents and three siblings, each parent would receive one quarter and each sibling would receive one sixth. If one parent has predeceased, the surviving parent inherits one half, and the other half is divided among the deceased's siblings. If a sibling has predeceased and leaves children surviving (nieces and nephews), they will take their parent's share.
If only parents survive, they take the whole estate.
If only siblings survive, they take the whole estate. The rules provide for the descendants of the siblings to inherit the whole estate where parents and siblings do not survive the deceased.
Notably, half-siblings only receive a share of the estate where there are no siblings who share both parents with the deceased, or descendants of those siblings.
4. If there are no surviving relatives under any of the classes listed above, the Act provides for ancestors to inherit the free estate, starting with aunts and uncles on both the maternal and the paternal sides. The rules provide for descendants of aunts and uncles to inherit if the aunts and uncles have predeceased.
5. The Act goes on to provide that if there are no relatives under those classes, succession is open to grandparents, then great-uncles and aunts, then very remote ancestors (which would include great-grandparents or great-great grandparents).
6. If there are no surviving relatives whatsoever, the Crown will take the whole estate – known as ultimus haeres.
Who doesn't benefit under intestacy rules in Scotland?
The Act doesn't make any provision for cohabitants or for step-children. Cohabitants can make a claim under the Family Law (Scotland) Act 2006, but this is not automatic and needs an application to the court. The maximum the court can award is what the cohabitant would have received if the couple had been married or in a civil partnership. There is no provision for step-children and provisions for half siblings are very limited.
Will there be any changes to Scottish intestacy rules?
Following a Scottish Government consultation, the Trust and Succession Scotland Act 2024 altered the order in which family members share the free estate. Prior to the introduction of this act, siblings and parents outranked spouses and civil partners, with spouses and civil partners limited to claiming their prior and legal rights only, and parents and siblings taking the free estate.
The new ordering has simplified the intestacy rules by making greater provision for spouses and civil partners. However, many practitioners feel there are still shortcomings with intestacy law – marriage or civil partnership now trumps blood relations which may not be desirable in many situations, and there remains no automatic provision for cohabitants and none for stepchildren.
Families are becoming increasingly complex and designing a new regime for intestacy to reflect that is not an easy task. However, the recent changes mean making a will is more important than ever - it avoids the complications that arise with intestacy and provides control, certainty and lets everyone make the provisions that are right for them and their family.
About the author
Angela McCulloch is a Partner in Wills Executry at Brodies LLP.
See also
What are the intestacy rules in England and Wales?
Find unclaimed estates in The Gazette
Find out more
Succession (Scotland) Act 1964 (Legislation)
Family Law (Scotland) Act 2006 (Legislation)
Trust and Succession Scotland Act 2024 (Legislation)
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Publication updated
18 September 2024