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Intestacy in Scotland – What Happens if You Die Without a Will? (2025 Guide)

Intestacy in Scotland is the legal process that decides who inherits when someone dies without a will.
This plain-English guide explains what happens in Scotland if someone dies without a valid will. It covers how the estate is divided, who has first claim, what “prior rights” and “legal rights” mean, and why relying on the default rules can cause real problems for families. It is written for normal Scottish families who want clarity, not legal jargon. It is general information only and is not legal advice. If your situation is complex or disputed, you should speak to a Scottish solicitor. If you simply want to avoid intestacy and put your own wishes in place, you can make a Scottish will online using our guided service: Make My Scottish Will (simple, fixed-fee online will for people living in Scotland). If you want to understand more about how wills work generally, you can also read our Scottish Wills Guide and our step-by-step article on how to write a Scottish will.

Contents

1. What is intestacy in Scotland?

In Scotland, a person is said to have died intestate if they die without leaving a valid will, or if the will they left is not legally valid or does not deal with their whole estate. When this happens, their money, property and possessions are not divided according to personal wishes. Instead, they are distributed according to the statutory rules of intestacy, mainly found in the Succession (Scotland) Act 1964 and updated by more recent legislation. Intestacy laws are designed to provide a default pattern of inheritance that feels “broadly fair” in common family situations, but they:
  • do not take account of your personal relationships
  • do not reflect modern blended and stepfamilies very well
  • may give rights to people you wouldn’t choose to benefit
  • can make things slower, more stressful and more expensive to sort out
Having a valid will lets you decide who benefits and who is in charge. Relying on intestacy leaves these decisions to the law instead of you.

2. When do intestacy rules apply?

The Scottish rules of intestacy normally apply when:
  • someone dies without any will at all; or
  • there is a document, but it is not valid as a will under Scots Law; or
  • the will only deals with part of the estate, and the rest is left “unallocated”.
Common situations where intestacy arises include:
  • people who always meant to “get round to it” but never did
  • homemade wills that were not signed or witnessed properly
  • old wills that no longer make sense after divorce, remarriage or new children
  • using a template written for England & Wales, not Scotland
Even if there is a will, there can still be a partial intestacy if the document does not cover all the property. For example, if the will only leaves a house to a spouse but says nothing about savings, investments, or personal possessions. A clear, up-to-date will is the simplest way to avoid falling into intestacy by mistake. You can see how our guided process works in our About ScottishWill page.

3. How a Scottish estate is divided with no will

When there is no valid will, a Scottish estate is generally divided in three main stages:
  1. Prior rights of the surviving spouse or civil partner
  2. Legal rights of spouse/civil partner and children over moveable estate
  3. The remaining free estate, shared among relatives in a fixed order
It can look complicated, but the basic pattern is:
  • the surviving spouse or civil partner has strong initial claims
  • children have rights to a share of the moveable estate
  • other relatives may inherit from whatever is left

3.1 Prior rights – the spouse or civil partner’s first claim

Prior rights only apply if there is a surviving spouse or civil partner. They do not apply to cohabitants or partners who were never married or in a civil partnership. In broad terms (and subject to statutory limits that can change over time), prior rights give the surviving spouse or civil partner:
  • a right to the family home (up to a maximum value) if they were living there
  • a right to the furniture and contents (up to a set value)
  • a right to a cash sum from the estate (with different limits depending on whether there are children)
These are taken from the estate before other relatives’ claims are considered. If the estate is small, prior rights can sometimes use up most or all of the value.

3.2 Legal rights – spouse and children’s shares of moveable estate

After prior rights are met (if they apply), the next layer is legal rights. These apply to the moveable estate only, which generally means everything except land and buildings. Both the surviving spouse/civil partner and any children (including adopted children) can have legal rights. These are normally expressed as fractions of the moveable estate, such as:
  • the spouse or civil partner may be entitled to a one-third share of the moveable estate
  • the children together may also be entitled to a one-third share, split equally between them
The exact fractions can vary depending on who survives, and children can sometimes claim legal rights instead of what they were left in a will. That is why legal rights are important even where there is a will, but in an intestacy they form part of the default structure.

3.3 The free estate – what is left after prior and legal rights

Once all prior and legal rights are dealt with, anything left over is called the free estate. This is then distributed among the remaining relatives in a fixed order set by law. Broadly (and simplifying for everyday cases), the order of priority for the free estate can include:
  • children (or grandchildren standing in their place)
  • parents and siblings
  • more distant relatives such as aunts, uncles, grandparents
  • if there are no qualifying relatives at all, the estate may ultimately pass to the Crown
This can feel very strange in modern families. For example, a long-term cohabiting partner with no formal status may receive nothing automatically under intestacy rules, even after years together in the same home.

4. Example scenarios – who inherits what?

Every estate is different, but it can help to see some simplified examples of how intestacy might work in practice. These are illustrative only and are not a substitute for legal advice.

4.1 Example 1 – Married couple with children, no will

Situation:
  • John dies in Scotland without a will.
  • He leaves a wife, Mary, and two children.
  • The family home and contents are in his name.
  • He has savings and a car (moveable estate).
What generally happens:
  • Mary’s prior rights may give her a claim over:
    • the home (up to the statutory value limit)
    • the furniture and contents (up to the limit)
    • a cash sum from the estate
  • After that, Mary and the children may each have legal rights to shares of the moveable estate.
  • Any remaining free estate is shared according to the intestacy order.
This can produce a result that is similar to what John might have written in a will – but not always. It may not deal cleanly with second marriages, stepchildren or unequal wishes.

4.2 Example 2 – Long-term cohabiting couple, no will

Situation:
  • Anne and David have lived together for 15 years in Scotland but never married.
  • The house is in Anne’s name.
  • Anne dies without a will.
  • She has no children but has a brother and elderly parents.
What generally happens:
  • David is not a spouse or civil partner, so he has no prior rights.
  • He also has no automatic legal rights to moveable estate.
  • Some relatives (such as parents and siblings) may inherit instead under the rules.
  • David may be able to apply to the court as a cohabitant for a share of the estate – but this is not guaranteed and can be stressful and expensive.
In reality, many people in David’s position are shocked to learn that years of cohabitation do not put them in the same position as a spouse when there is no will.

4.3 Example 3 – Blended family and children from a previous relationship

Situation:
  • Mark is remarried and has one child from a previous relationship plus two children with his new spouse.
  • He dies in Scotland without a will.
What generally happens:
  • His current spouse may still have prior rights and legal rights claims.
  • All of Mark’s children, including those from his previous relationship, may have legal rights to the moveable estate.
  • The free estate may then be shared between relatives according to the statutory order.
The end result could be very different from what Mark would have chosen if he had made a will. Intestacy does not know or care about family tensions, estrangement or which children have been more involved in his life.

5. Key terms: prior rights, legal rights, free estate

Here is a quick reference for some of the most important concepts in Scottish succession law:

5.1 Testator

The testator is the person who makes a will. In an intestacy, we still talk about “the deceased” or “the estate”, but there is no testator’s written instructions to follow.

5.2 Estate

The estate is everything a person owns at the time of their death, after debts and funeral expenses are taken into account. It is usually divided into:
  • Heritable property – mainly land and buildings in Scotland.
  • Moveable property – money, savings, investments, vehicles, furniture, personal possessions and so on.

5.3 Prior rights

Prior rights are the first claims on an intestate estate, given to a surviving spouse or civil partner. They cover:
  • the right to the family home (within certain value limits)
  • the right to furniture and household contents (again, up to a limit)
  • the right to a cash sum
The exact amounts are set by law and can change over time. For up-to-date figures you can check official sources such as the Law Society of Scotland.

5.4 Legal rights

Legal rights are claims that a surviving spouse/civil partner and children have to the moveable estate, whether or not there is a will. In an intestacy they form part of the default structure; where there is a will, they can sometimes be claimed instead of what was left in the will. These rights cannot easily be ignored, which is why careful planning matters if you are trying to be very specific about who does and does not benefit.

5.5 Free estate

The free estate is what remains after:
  • debts and funeral expenses are paid
  • prior rights are satisfied (if there is a spouse/civil partner)
  • legal rights are taken into account
This free estate is then shared out among relatives in a fixed legal order, even if that order does not match what the deceased might have wanted.

6. What about cohabitants and stepfamilies?

Modern Scottish families are often more complicated than the traditional married couple with two children. Unfortunately, intestacy rules were not written with every modern situation in mind.

6.1 Cohabitants (unmarried partners)

If you lived with someone as a couple but were not married or in a civil partnership, you are treated as a cohabitant, not a spouse. As a cohabitant you do not automatically inherit under intestacy rules. Instead, you may have to apply to the court within a strict time limit asking for a share of the estate. The court has discretion, and there is no guarantee you will receive what you feel is fair. For more detail on cohabitants’ rights, you can refer to guidance from the Scottish Government or speak to a Scottish solicitor.

6.2 Stepchildren

Stepchildren are not automatically treated in the same way as biological or adopted children under intestacy rules. If you die without a will, they may receive nothing from the estate, even if you treated them as your own. If you want to provide for stepchildren, foster children or anyone else who would not automatically inherit, you generally need a valid will that clearly names them. Our article on Scottish will roles and clauses can help you understand the main building blocks.

6.3 Second marriages and blended families

Intestacy can be particularly awkward where there are:
  • children from earlier relationships
  • a new spouse or civil partner
  • tensions or estrangement between relatives
The law follows its own order, not your personal sense of fairness. A carefully written will is usually the only way to balance the needs of a current partner with those of children from a previous relationship.

Avoid intestacy – put your own wishes in writing

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7. How Scotland differs from England & Wales

Many will templates and online articles are written for England & Wales, not Scotland. While there are similarities, there are also important differences in both intestacy and will requirements. Some of the key differences include:
  • Age to make a will – in Scotland, a person can generally make a will from age 12; in England & Wales the usual age is 18.
  • Witnessing – Scottish wills typically require one independent witness to the testator’s signature on the last page; in England & Wales, two witnesses are normally needed.
  • Legal rights – Scotland has a distinctive system of legal rights in moveable estate for spouses/civil partners and children, which can apply whether or not there is a will.
  • Terminology – Scottish courts talk about “confirmation” of an estate, whereas in England & Wales the equivalent is a “grant of probate”.
For these reasons, using a template drafted for a different jurisdiction can cause problems. Our content is written with Scotland specifically in mind. If you want a broader grounding, you can refer to reputable Scottish sources such as:

8. Why relying on intestacy can cause problems

Some people assume that “it will all just go to my other half anyway” or that the law will “more or less do what I would have done”. In practice, relying on intestacy can create real difficulties.

8.1 People you care about may receive nothing

Common risk areas include:
  • cohabiting partners with no legal status as spouse or civil partner
  • stepchildren you treat as your own, but who are not legally adopted
  • friends, carers or charities you might have wanted to benefit
Intestacy does not recognise emotional closeness. It simply works down the statutory list of relatives in order.

8.2 Family disputes and delays

Where there is no clear written will, it can be harder for families to agree on what the deceased “would have wanted”. That can lead to:
  • arguments between surviving partner and adult children
  • tension between children from different relationships
  • longer, more expensive administration of the estate
A well-drafted will does not guarantee harmony, but it gives your executors a clear instruction to follow and reduces the scope for disagreement.

8.3 No control over timing or conditions

Intestacy rules do not allow you to:
  • delay a child’s inheritance until a chosen age
  • require property to be sold or retained
  • include special protections for vulnerable beneficiaries
  • make small gifts of sentimental items to particular people
If you want any form of control, flexibility or protection, you almost certainly need a will. Our article on Scottish will roles and clauses explains some of the common options in more detail.

9. How to avoid intestacy (and keep control)

The only reliable way to avoid intestacy is to have a valid, up-to-date will that covers your Scottish estate clearly. That will should:
  • be written with Scots Law in mind
  • identify you properly as the testator
  • appoint one or more executors you trust
  • set out who is to inherit your estate, and in what shares
  • explain what should happen if a beneficiary dies before you
  • be properly signed and witnessed in line with Scottish requirements
You can read more about the practical steps in our main guide on how to write a Scottish will. If you prefer a deeper overview, see our Scottish Wills Guide. For many families with straightforward estates, an online Scottish will service is a sensible middle ground between doing nothing and paying high street solicitor fees. Our own service, ScottishWill, is designed to:
  • guide you through the key questions in plain English
  • flag when your situation might be too complex for a simple will
  • produce a will that is tailored to Scotland, not another jurisdiction
  • provide clear signing instructions so your will is validly executed
We are not a law firm and we do not provide individual legal advice. Instead, we offer a simple, fixed-fee way to put sensible written wishes in place for typical Scottish families.

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10. Quick FAQs about intestacy in Scotland

Do I really need a will if I am married with children?

Yes. Without a will, your estate is divided under the Scottish intestacy rules, which may not match what you want – especially if you have a mixed or blended family, children from previous relationships, or particular wishes about who should receive what.

Does everything just go to my spouse automatically?

Not always. While your spouse or civil partner has strong prior and legal rights, other relatives (including children) can also have claims. The final result may surprise you, especially where the estate is larger, or there are children from earlier relationships.

What happens if I have no close family?

If there is no spouse, civil partner, children or other qualifying relatives, the estate can ultimately pass to the Crown. This is rare but possible where there is no family and no will.

Can a cohabiting partner inherit anything if there is no will?

They have no automatic entitlement under intestacy rules, but they may be able to apply to the court for a share of the estate as a cohabitant. This process is not guaranteed, can be stressful, and usually requires legal advice. A will is the simplest way to protect a cohabiting partner.

Can I change my mind later if I make a will now?

Yes. You can normally make a new will at any time, provided you still have mental capacity. Most people review their will after major life changes – such as marriage, separation, children, moving home, or significant changes in their finances.

11. Further reading and useful links

If you would like to explore the official background to Scottish succession rules and intestacy, the following resources may be helpful: For more practical, plain-English information on Scottish wills, you may also find these internal guides useful: If you are now ready to put your own wishes in place and avoid intestacy, you can start your Scottish will online here: Make My Scottish Will.