What Happens If You Die Without a Will in Scotland?

Understanding intestacy and who inherits your estate when there is no valid will

Making a will can be easy to put off. Young people may feel it is unnecessary to create a will, others may assume they do not own enough assets to justify it, and some may simply just never get around to putting a will in place.

However, if you die without a valid will in Scotland (known as dying intestate) the law of intestate succession determines who inherits your estate. The rules of intestacy are set out in the Succession (Scotland) Act 1964, and they may result in a completely different outcome than what you would have intended.

Appointing an Executor

If there is no valid Will, an Executor must be appointed in order to administer the estate. This is usually someone entitled to inherit under the intestacy rules, such as a close family member, and they must instruct a Solicitor to apply to the court on their behalf to have them appointed as Executor.

Bond of Caution

Before an Executor can deal with the estate, they must identify all assets and liabilities and prepare an inventory.

In most intestate estates, the Executor must obtain a Bond of Caution before the Sheriff Clerk will issue a Grant of Confirmation. This is an insurance policy that protects beneficiaries against any financial loss arising from Executor’s mistakes, maladministration or dishonesty.

A Bond of Caution is not required where the entire estate passes to a surviving spouse or civil partner.

Applying for Confirmation

Once the information has been gathered and the Bond of Caution obtained, the Executor can apply for Confirmation. This grants them legal authority to gather assets, sell or transfer property, settle debts, and distribute the estate under the laws of intestate succession.

Prior Rights

Distribution follows a strict statutory order.

• Housing Right: A surviving spouse or civil partner is entitled to the home they lived in, up to a maximum value of £473,000.
• Household Contents: Furniture and personal goods up to a value of £29,000.
• Cash Sum: £89,000 if there are no surviving children, or £50,000 if there are surviving children.

Legal Rights

If any estate remains after Prior Rights, the surviving spouse/civil partner and children can claim a share of the net moveable estate.

• If there is a spouse and children, each group gets one-third of the net moveable estate.
• If there is only a spouse or only children, that group gets one-half of the net moveable estate.

Free Estate

Any remaining assets pass to children, or if none, to the surviving spouse/civil partner, followed by parents and siblings. This process can make the administration of an intestate estate lengthy. If there are no surviving relatives, the estate falls to the Crown under the rule of ultimus haeres, meaning ‘last heir’.

Why having a Will matters

While the intestacy rules provide a framework, they cannot reflect personal wishes or take into account the specific circumstances of an individual. Making a valid will allows you to make these decisions for yourself rather than leaving it up to the law. It will also make the administration process quicker and less expensive if you have a will in place.

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The information and opinions contained in this blog are for information only.  They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice.  Before acting on any information contained in this blog, please seek solicitor’s advice from Gilson Gray.