Intestacy Rules Scotland: What Happens When There's No Will

When someone dies in Scotland without a valid Will, the estate does not automatically pass to the nearest relative. It passes according to a rigid statutory framework that bears almost no resemblance to the English rules. The Scottish intestacy system has three distinct tiers — Prior Rights, Legal Rights, and the Free Estate — and they must be applied in sequence.

Understanding these rules matters whether you are a family member trying to work out what you are entitled to, or an executor dative trying to distribute the estate without creating personal liability for yourself.

Does Scotland Have "Next of Kin" Rules?

Not in the way most people assume. Many people believe that dying without a Will means everything goes to the nearest relative — spouse first, then children, then parents. Scotland's approach is more structured than that.

The intestacy framework is governed by the Succession (Scotland) Act 1964, as significantly amended by the Trusts and Succession (Scotland) Act 2024. The sequence is:

1. Prior Rights (surviving spouse or civil partner only)
2. Legal Rights — Jus Relictae / Jus Relicti (spouse) and Legitim (children)
3. Free Estate distribution

Each tier is calculated from what remains after the previous tier is satisfied.

Tier 1: Prior Rights

Prior Rights apply only to the surviving spouse or civil partner. They are satisfied before anything else and take precedence over all other claims.

Current (2026) Prior Rights limits:

• Dwelling house: up to £473,000 — the spouse is entitled to the family home if the deceased owned it or had a heritable interest in it and the spouse was ordinarily resident there
• Furniture and plenishings: up to £29,000
• Financial provision: £50,000 if children survive; £89,000 if no children

If the estate cannot satisfy all Prior Rights in full, they are paid out proportionately. If the house is worth more than £473,000, the spouse receives the cash figure instead of the property itself.

See our separate article on Prior Rights Scotland for detailed calculation examples.

Tier 2: Legal Rights (Legitim)

After Prior Rights are satisfied, Legal Rights apply to the net moveable estate — the remaining moveable assets after moveable debts are deducted. Legal Rights are available to the surviving spouse and children regardless of what was taken through Prior Rights.

• Surviving spouse and children both present: each gets one-third of the net moveable estate
• Surviving spouse only (no children): spouse gets one-half
• Children only (no spouse): children share one-half equally

Children's shares are divided equally among them. Grandchildren inherit their parent's share if a child has predeceased.

Critical point about Legal Rights: beneficiaries do not automatically receive Legal Rights. They must actively elect to claim them. In a testate estate (with a Will), they must choose between their Legal Rights and the gift under the Will — they cannot take both.

Tier 3: The Free Estate

The Free Estate is what remains after Prior Rights and Legal Rights have been satisfied. This is distributed according to the following hierarchy under Scots law:

1. Children (and their descendants)
2. Surviving spouse or civil partner — but only if there are no children
3. Parents and siblings together (half to parents, half to siblings if both survive; all to whichever group survives alone)
4. Siblings alone (if no parents survive)
5. Parents alone (if no siblings survive)
6. Remoter relatives — uncles, aunts, cousins, in descending order
7. The Crown (ultimus haeres — "last heir") if no relatives survive

What Changed Under the Trusts and Succession (Scotland) Act 2024

The Trusts and Succession (Scotland) Act 2024 made a significant change to the Free Estate hierarchy on intestacy. Before this Act, the Free Estate on intestacy passed first to the children, and if there were none, it passed to parents and siblings ahead of the surviving spouse.

Under the Act (applying to deaths after its commencement in April 2024), the surviving spouse or civil partner now inherits the entire Free Estate ahead of parents and siblings when there are no children. The spouse no longer needs to compete with the deceased's parents or siblings for the residue.

This matters enormously in one specific scenario: separated couples who have not yet divorced. If a couple is legally married but separated — even if separated for years, living apart, with no contact — the surviving spouse remains the legal spouse. Under the new rules, that separated spouse inherits the entire Free Estate on intestacy, ahead of anyone else. The deceased's family can do nothing about this unless they can establish grounds to challenge the marriage itself.

If you are in this situation as a family member, seek legal advice immediately. This is a clear escalation trigger.

Cohabitants: No Automatic Rights, Strict Deadline

Unmarried partners — those who were not married or in a civil partnership — have no automatic rights under Scottish intestacy. Scotland does not recognise "common law marriage."

However, a cohabitant can apply to the court for a financial award from the intestate estate under Section 29 of the Family Law (Scotland) Act 2006. The Trusts and Succession (Scotland) Act 2024 extended the time limit for this application from six months to twelve months from the date of death.

This is a hard deadline. The Scottish courts have no power to extend it, even by a single day. A cohabitant must take legal advice and begin the court process promptly. Preparation of a Section 29 petition is procedurally complex, and the potential award is capped at what the cohabitant would have received had they actually been married.

The Executor Dative: Starting Point for Intestate Estates

When there is no Will, there is no executor nominate. Someone must apply to the Sheriff Court to be appointed executor dative before Confirmation can be obtained and the estate administered.

The right to apply follows this hierarchy:

1. Surviving spouse or civil partner
2. Children and remoter descendants
3. Parents
4. Siblings and their descendants
5. Other relatives in order

The petition costs £23. The executor dative must also obtain a Bond of Caution (an insurance policy) before Confirmation is granted — unless the estate qualifies as a Small Estate under £36,000 gross moveable value and the Sheriff Clerk prepares the inventory directly. See our article on Bond of Caution Scotland for the full details.

Common Mistakes in Scottish Intestacy

Distributing without checking Legal Rights. Even if Prior Rights have consumed most of the estate, surviving spouses and children still have Legal Rights claims on the net moveable estate. The executor cannot ignore these.

Misidentifying the deceased's matrimonial status. A separated spouse is still a legal spouse. Do not distribute on the assumption that a separated spouse has no claim until you have verified that a divorce was actually finalised before the death.

Missing the cohabitant deadline. If a cohabitant has a potential Section 29 claim, the executor should not distribute the estate until the 12-month period has passed (or the cohabitant has formally waived their right to claim).

Confusing "next of kin" with legal entitlement. A sibling who is the "next of kin" for hospital notification purposes may have no entitlement to the estate if a surviving spouse exists and the estate is absorbed by Prior Rights and the new Free Estate rules.

Intestacy in Scotland is genuinely complex, and the rules changed significantly in 2024. The When Someone Dies in Scotland Estate Settlement Guide includes a full intestacy calculation section, an executor dative appointment checklist, and a step-by-step walkthrough of the Prior Rights, Legal Rights, and Free Estate distribution process.

See more Scotland guides →