Who inherits when someone dies without a Will in Scotland

This guide explains how Scottish Succession Law works, including changes that were made to these in April 2024.

When someone dies without a valid Will in Scotland, the law decides who inherits their estate. These laws are referred to as the laws of intestacy, and they follow a strict order. This order can sometimes be challenged if the person had a partner who they lived with but they were not married to or in a legal civil partnership. Otherwise, the laws of intestacy are fixed and cannot be appealed, even if someone was estranged or absent for a long time.

Use the Gov.uk Intestacy Checker Tool to find out who is likely to inherit and who can apply to be executor.

How to find out if someone left a Will Scotland

Dying intestate means someone has died without a signed, valid Will in place. Even if the person had made their wishes clear in other ways - in conversation, in writing, or in an unsigned Will - this has little or no legal weight without a valid Will.

What makes a Will valid?

In this case, their estate is divided up according to Scottish law.

This law sets out:

What makes a Will valid?

The order of inheritance depends on what family members the person is survived by.

You first need to consider whether the person has:

If someone died on or after 1 May 2024 and has no descendants, their spouse inherits the entire estate, and is the only person entitled to act as Executor.

If they died before May 2024, it might be more complicated. You can check your specific circumstances using the gov.uk checker.

In this scenario, the estate is divided equally by the number of children the person had. Any of their children are equally entitled to apply to be Executor.

The estate is shared out in a strict order according to what family members were alive at the time the person died.

Use the Gov.uk Intestacy Checker Tool to help work out who is entitled to inherit in your situation.

When the person has both a spouse and descendants, things are a bit more complicated.

Firstly, the law splits the estate into 2 categories:

You then need to follow three strict steps.

‘Prior rights’ means that someone’s spouse (including legal civil partners) is entitled to a share of specific assets before anyone else.

If the spouse lives in a property that was owned or part-owned by the person who died, they are entitled to up to £473,000 of the value of that person’s share.

If the deceased person’s share is worth more than this, their spouse might need to buy out the rest of the value from their children if they want to keep the property.

The spouse is entitled to up to £29,000 of the deceased person’s share of any furniture and household contents in the home they lived in together.

In general, furniture and household goods can be considered jointly owned, meaning that if the total market value of household goods is less than £58,000 (£29,000 x 2), the spouse would keep everything.

The spouse is also entitled to up to £50,000 of the deceased person’s share of any bank accounts and other financial assets.

If everything in the estate falls under these limits, then the spouse inherits everything, and is the only person that can act as Executor.

Otherwise, continue to step 2.

Prior rights only apply only to legal spouses and civil partners. Long-term partners or cohabitants do not inherit anything automatically under intestacy laws in Scotland. However, cohabiting partners can sometimes make a claim under Section 29 of the Family Law (Scotland) Act 2006. A solicitor is needed for this.

The second step is to look at what is left in the moveable estate.

One third of this goes to the person’s spouse.

A further third is equally distributed between the number of children the person had. Grandchildren inherit their parent’s share if that parent has died.

Whatever is left after prior and legal rights have been dealt with is called the ‘free estate’. The free estate might include things in the heritable estate, moveable estate, or both.

When there are living descendants, the free estate is divided equally between the number of children the person had. Grandchildren inherit their parent’s share where relevant.

Use the Intestacy Checker Tool to help work out who is entitled to inherit in your situation. This covers deaths before and after April 2024.

Only certain people are allowed to apply to become the Executor when there is no Will.

Anyone who is entitled to inherit from the estate can legally apply to be Executor, but the Court normally prefers to appoint the person or people entitled to inherit the largest share.

Once appointed, the Executor is responsible for managing the estate. This includes identifying all assets and debts, paying creditors in the correct order, and distributing what's left to the right people.

If you think the estate has more debts than money or property (another way of saying the estate is bankrupt), you should be very careful before taking on the role of Executor. You could become personally liable if you get things wrong, even by mistake.

If you think the estate might be bankrupt, you should seek advice from a solicitor or insolvency expert before paying off any debts or applying for Confirmation.

The Scottish Succession Laws were updated in April 2024 to prioritise spouses over parents and siblings when the person has no descendants.

Be careful what online resources you use to check intestacy laws, as many have not yet been updated with these changes. They might also be based on the law in England and Wales, which is different from Scottish law.

If you're unsure who inherits, who should act as Executor, our team can help. Contact us

We’ll never encourage you to take on an estate that might leave you worse off.