More than half of UK adults don’t have a will. In Scotland, the figure is slightly better than the national average, but that still leaves well over a million people whose families could face serious financial and legal complications if the worst happened tomorrow.
No will doesn’t mean “the family sorts it out.” It means Scots law decides. And Scots law has its own rules about who gets what. Those rules might not match what you’d want.
Here’s what actually happens.
What Is Intestacy?
When you die without a valid will, you die “intestate.” Your estate doesn’t just flow naturally to the people you love. Instead, it’s distributed according to a fixed legal framework under the Succession (Scotland) Act 1964.
That framework has three layers: Prior Rights, Legal Rights, and the Dead’s Part. They apply in that order, and each one can significantly affect what your family receives.
Layer One: Prior Rights
Prior Rights go to your spouse or civil partner first, before anyone else. They cover three things.
- The house. Your spouse can claim the family home (or their share of it) up to a value of £473,000. If the home is worth more, they receive a cash payment of £473,000 instead.
- Furniture and contents. Your spouse can claim household furniture and furnishings up to £29,000.
- A cash sum. If you have children, your spouse receives up to £50,000 in cash. If you have no children, that figure rises to £89,000. These thresholds were last set in 2012 and have not been updated since.
Prior Rights are substantial, but they’re not unlimited. If your estate is modest, Prior Rights alone could exhaust it entirely, leaving nothing for anyone else.
Layer Two: Legal Rights
After Prior Rights are satisfied, Legal Rights kick in. These apply to the moveable estate — that means money, investments, vehicles, and personal property. It does not include land or heritable property.
Children are entitled to claim what’s called the legitim fund. If you leave a surviving spouse, your children collectively receive one third of the moveable estate. If there’s no surviving spouse, that share rises to one half.
Your spouse also has Legal Rights. They can claim one third of the moveable estate if you leave children, or one half if there are no children.
On intestacy, your spouse is entitled to both Prior Rights and Legal Rights. Prior Rights are satisfied first, and Legal Rights then apply to whatever moveable estate remains. If there is a will, a beneficiary must choose between taking their bequest under the will or claiming their Legal Rights — but not both. That election only arises when a will exists.
Layer Three: The Dead’s Part
Whatever’s left after Prior Rights and Legal Rights is called the Dead’s Part. This passes to your nearest relatives in a strict order: children first, then parents and siblings, then more distant relatives, and eventually, in rare cases, the Crown.
The Dead’s Part is what most people imagine “intestacy” covers. In reality, by the time you reach it, there may be very little left.
What This Means in Practice
Scots law applies the same framework regardless of your individual circumstances. Here’s how it plays out across different family situations.
- Married with children. Your spouse takes Prior Rights first, then Legal Rights. Your children share the remaining legitim fund. Most families in this situation fare reasonably, but it rarely reflects exactly what you’d have chosen.
- Married, no children. Your spouse takes Prior Rights and Legal Rights. In most cases this means they receive everything, or close to it. Your wider wishes are still ignored entirely.
- Cohabiting partners. This is where intestacy bites hardest. If you’re not married and not in a civil partnership, your partner has no automatic right to anything under Scots law. None. Zero. Your partner can apply to the court under the Family Law (Scotland) Act 2006 for a share of the estate, but must do so within six months of the date of death — and the outcome is not guaranteed. If you’re cohabiting and you don’t have a will, your partner is not protected. For more on this, see our guide to cohabiting couples and wills in Scotland.
- Single with children. Everything passes to your children, shared equally. If your children are under 16, a guardian may need to be appointed to manage the money. Without a will, you’ve had no say in who that guardian is.
- Single, no children. Your estate passes up the family tree — parents, siblings, nieces and nephews in order. If you have a friend, a charity, or a cause you care about, they receive nothing.
Common Misconceptions
- “My partner will get everything.” Only if you’re married or in a civil partnership. Cohabiting partners have no automatic right under Scots law. Many people don’t know this until it’s too late.
- “My kids will sort it out.” Your kids can’t override the legal framework. They have no authority to divide things how they think you’d have wanted — they’re bound by the same rules as everyone else.
- “I don’t own enough to need a will.” A will isn’t only about property. It covers who looks after your children, what happens to your bank accounts, and who has the authority to handle your affairs. Even a small estate causes problems without one.
Guardianship and Young Children
If you have children under 16 and die without a will, the question of who looks after them has no clear answer in your estate documents. The court may have to appoint a guardian.
A will lets you name the person you want. Without one, that decision is out of your hands entirely.
Quick FAQs about intestacy in Scotland
What happens if you die without a will in Scotland?
Your estate is distributed according to the Succession (Scotland) Act 1964. Your spouse or civil partner receives Prior Rights first, followed by Legal Rights over the moveable estate, with the remainder passing to nearest relatives in a fixed order.
Do cohabiting partners inherit in Scotland if there is no will?
No. Cohabiting partners have no automatic right to inherit under Scots law. They can apply to the court under the Family Law (Scotland) Act 2006, but must do so within six months of the date of death, and the outcome is not guaranteed.
What are Prior Rights in Scotland?
Prior Rights are the first claim a surviving spouse or civil partner has on an intestate estate. They cover the family home (up to £473,000), household furniture (up to £29,000), and a cash sum of up to £50,000 if there are children, or £89,000 if there are no children.
What are Legal Rights (legitim) in Scotland?
Legal Rights give children a right to one third of the moveable estate if the deceased left a surviving spouse, or one half if there is no surviving spouse. A surviving spouse can also claim one third of the moveable estate if there are children, or one half if there are no children.
Is it worth getting a will if I don’t own property in Scotland?
Yes. A will covers more than property. It lets you name a guardian for young children, specify who handles your finances, and ensure your wishes are followed. Without a will, all of these decisions are made by Scots law or the courts.
Ready to put your will in place?
If your situation is reasonably straightforward and you want a clear, fixed-fee process, you can make a Scottish will online here. The process usually takes around ten minutes, and your completed Will Pack is emailed to you within two business days.
If you have any questions, you can contact us — we’re here to help.