What Happens If You Die Without A Will In Scotland?
Scottish succession law is unlike anything south of the border. If you live in Scotland and don't have a will, the rules that govern your estate are older, more layered — and often more surprising — than most people expect.
The legal term is "dying intestate”
If you die without a valid will in Scotland, you are said to have died intestate. Your estate — your home, savings, possessions, and everything else you leave behind — is then distributed not according to your wishes, but according to a set of legal rules.
In Scotland, those rules come primarily from the Succession (Scotland) Act 1964, updated by more recent legislation including the Trust and Succession (Scotland) Act 2024.
They work very differently from the rules in England and Wales — and the differences matter.
Three layers, not one
In England, the Intestacy Rules follow a single hierarchy. In Scotland, the process works in three distinct stages, each of which must be resolved before the next can begin.
Stage 1 — Prior Rights
The first claim on a Scottish intestate estate belongs to a surviving spouse or civil partner through what are called prior rights.
Prior rights give the surviving spouse or civil partner:
- A right to the family home — up to a current value of £473,000 (as of 2026/27)
- A right to household contents and furniture — up to £29,000
- A right to a cash sum from the estate — £50,000 if there are surviving children, or £89,000 if there are not
These figures are set by legislation and are reviewed and adjusted from time to time, so the amounts above reflect the current position as of June 2026.
If the estate is modest, prior rights can absorb most or all of it before anyone else receives anything.
Important: Prior rights only apply to a spouse or civil partner. They do not apply to an unmarried partner, however long the relationship has lasted.
Stage 2 — Legal Rights
Once prior rights have been satisfied, the next layer is legal rights — sometimes known by their Scots law names, ius relictae (widow's right), ius relicti (widower's right), and legitim (children's right).
Legal rights apply to the moveable estate only — broadly, everything except land and buildings.
Where both a spouse/civil partner and children survive:
- The spouse or civil partner is entitled to one third of the moveable estate
- The children together are entitled to one third of the moveable estate, shared equally between them
Where there is a spouse/civil partner but no children, the spouse is entitled to one half of the moveable estate. And where there are children but no spouse, the children together are entitled to one half.
Legal rights are a floor, not a ceiling — they cannot be taken away from a spouse or child, even by a will. This is one of the most important differences between Scottish law and English law.
Stage 3 — The Free Estate
Whatever remains after prior rights and legal rights have been dealt with is called the free estate. This is distributed among surviving relatives in the following order:
1. Children (or grandchildren stepping in if a child has died)
2. Parents and siblings (sharing equally between them)
3. More distant relatives — aunts and uncles, grandparents, and so on
4. If no qualifying relatives exist at all, the estate passes to the Crown — known in Scotland as ultimus haeres (meaning "last heir")
The unmarried partner problem — even more acute in Scotland
As in England, an unmarried partner has no automatic right to inherit under the Scottish intestacy rules.
However, Scotland does offer one route that England does not: an unmarried cohabitant can apply to the court under the Family Law (Scotland) Act 2006 for a share of the estate. But this is not automatic. It requires a court application, can be contested by other beneficiaries, and must be made within six months of the date of death. It is stressful, expensive, and far from guaranteed.
The only certain way to provide for an unmarried partner is to make a will.
What about stepchildren?
Scottish intestacy law, like its English counterpart, does not automatically provide for stepchildren unless they have been legally adopted.
Biological children and legally adopted children have legal rights to a share of the moveable estate. Stepchildren — regardless of how long they have been part of the family — have none.
What about your home?
As in England, the way you own property affects what happens to it.
If you own property as joint owners in Scotland, the survivorship destination in the title deed may pass the property directly to the surviving owner — independently of the intestacy rules. If you own a share of property as common owners, your share forms part of your estate and is distributed accordingly.
If you are unsure how your property is held, your original conveyancing documents or the Land Register will confirm it.
Who administers your estate?
Without a will, there is no executor. Someone must apply to the court to be appointed as an executor-dative — the Scottish equivalent of an administrator in English law.
This takes time, adds cost, and can create real difficulties for families who need access to funds quickly after a bereavement. A named executor in a will can act far more swiftly.
Why Scottish intestacy law surprises people
A few things catch families off guard:
Legal rights cannot be overridden. Even if you make a will leaving everything to your spouse, your children can still claim their legitim from the moveable estate. A well-drafted will can offer alternatives, but the rights themselves cannot simply be removed.
The prior rights thresholds have changed. Following the Trust and Succession (Scotland) Act 2024, the figures were significantly increased. If you have previously received advice based on the old figures, it is worth reviewing it.
Using an English will in Scotland doesn't work. A will written for English law may not be valid — or may not work as intended — if applied to a Scottish estate. If you have moved from England to Scotland, your existing will needs to be reviewed.
The simple solution
Scottish succession law has real depth and nuance to it. But the solution, as with England, is straightforward: make a will.
A valid Scottish will lets you:
- Choose who inherits your estate
- Name an executor you trust to administer it
- Provide for an unmarried partner
- Include stepchildren, friends, or charities
- Plan around legal rights to avoid family disputes
- Ensure your wishes are followed — not the law's default
At Your Wills Team, we offer a free 30-minute call to talk through your situation and tell you exactly what you need — whether you're in Scotland, England, or split across both. No obligation, no jargon. Just clear, honest advice from a qualified lawyer.
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