Quick Summary
- Scottish intestacy follows a strict three-layer system — prior rights, legal rights, then free estate — and the surviving spouse does not automatically get everything
- Cohabitants inherit nothing automatically — unmarried partners must apply to court within 12 months of death, and the court can refuse
- Prior rights thresholds for 2026/27 are £473,000 (house), £29,000 (contents), and £50,000 or £89,000 (cash) — these figures increased under the Trust and Succession (Scotland) Act 2024
- See how your estate would be divided — the Scottish Intestacy Calculator breaks down your specific situation in under a minute
Scottish succession law has almost nothing in common with English inheritance rules. If someone dies without a valid will in Scotland, their estate is split through a layered system that dates back centuries — and the results often shock families who assumed everything would go to the surviving spouse.
Quick Answer: When someone dies without a will in Scotland, their estate passes through three layers: prior rights (spouse gets the house up to £473,000, contents up to £29,000, and a cash sum of £50,000 or £89,000), then legal rights (spouse and children share the remaining moveable estate), then the free estate (divided by strict rules). Unmarried partners get nothing automatically — they must apply to court within 12 months. Use our Scottish Intestacy Calculator to see exactly who gets what.
What is intestacy and why does it matter in Scotland?
Around 60% of adults in the UK do not have a will. In Scotland, that means their estate — everything they own — is distributed according to the Succession (Scotland) Act 1964, as amended by the Trusts and Succession (Scotland) Act 2024. You do not get to choose who inherits. The law decides.
This matters more in Scotland than anywhere else in the UK because Scottish succession law operates a completely different system. Where English law generally gives most or all of the estate to the surviving spouse, Scottish law divides it through three separate layers with fixed thresholds. The result: a surviving spouse almost never gets the entire estate if there are children.
And if you are not married? You get nothing. Not a penny. Not automatically, anyway.
Who counts as "intestate"?
You die intestate if:
- You never made a will
- Your will is invalid (not signed properly, not witnessed correctly under Scots law)
- Your will doesn't cover all your assets (partial intestacy)
Partial intestacy is more common than people realise. If your will covers your house and savings but not, say, a pension death benefit or a bank account you opened after writing the will, those uncovered assets pass under intestacy rules.
The three-layer system: how Scottish intestacy works
Scottish intestacy is not one simple rule. It is a sequence of three layers, applied in order. Each layer must be fully satisfied before moving to the next.
Layer 1: Prior rights (spouse or civil partner only)
Prior rights are unique to Scotland. They give the surviving spouse or civil partner first claim on the estate, up to fixed financial limits.
There are three elements:
| Prior right | What it covers | 2026/27 threshold |
|---|---|---|
| House | The dwelling house the surviving spouse lived in | Up to £473,000 |
| Furniture and contents | Household contents of that dwelling house | Up to £29,000 |
| Cash sum | A fixed cash payment from the remaining estate | £50,000 (if surviving children exist) or £89,000 (if no surviving children) |
These thresholds were increased by the Trusts and Succession (Scotland) Act 2024. Before that Act, the house threshold was £473,000 (unchanged), furniture was £29,000 (unchanged), and the cash sums were £50,000 and £89,000 (also unchanged from the 2024 uprating). The Scottish Government has power to uprate these figures by statutory instrument.
Prior rights only apply to the surviving spouse or civil partner. If you are cohabiting — even if you have lived together for 30 years and have children together — you have zero prior rights. This is one of the biggest gaps in Scottish law for unmarried couples.
How the house prior right works in practice:
If the house is worth less than £473,000, the surviving spouse gets the whole house (or its value, if the estate needs to sell it). If the house is worth more than £473,000, the spouse gets £473,000 in value — they might need to sell the house and take £473,000 from the proceeds, with the remainder going into the estate for further distribution.
The house must be one the surviving spouse was "ordinarily resident" in. A holiday home or investment property does not qualify.
Layer 2: Legal rights (spouse and children)
After prior rights have been satisfied, legal rights apply to the moveable estate only. Moveable estate means everything except land and buildings — so bank accounts, investments, shares, cars, personal possessions, and similar assets.
| Situation | Spouse's legal rights share | Children's legal rights share |
|---|---|---|
| Spouse + children survive | One-third of net moveable estate | One-third of net moveable estate (shared between all children equally) |
| Only spouse survives | One-half of net moveable estate | N/A |
| Only children survive | N/A | One-half of net moveable estate (shared equally) |
The remaining portion of the moveable estate (and all heritable estate not claimed through prior rights) falls into the free estate.
Legal rights cannot be defeated by a will in Scotland. Even if someone writes a will leaving everything to charity, their spouse and children can still claim legal rights from the moveable estate. This is a fundamental protection in Scots law that does not exist in England.
Layer 3: Free estate (what's left)
After prior rights and legal rights have both been satisfied, whatever remains is the "free estate." This is distributed according to a hierarchy set out in the 1964 Act:
- Children (or their descendants)
- Parents and siblings (half each to parents, half to siblings)
- Siblings only (if no surviving parents)
- Parents only (if no surviving siblings)
- Spouse or civil partner
- Uncles and aunts
- Grandparents
- More distant relatives
- The Crown (if no relatives can be found — called ultimus haeres)
The spouse is ranked fifth. That means if the deceased had children, parents, or siblings, they all rank ahead of the surviving spouse for the free estate. Most people find this deeply counterintuitive.
Try it yourself
Enter your estate details and family situation to see exactly how Scottish intestacy law would divide everything — including prior rights, legal rights, and free estate.
Open Scottish Intestacy CalculatorNo sign-up required.
Worked example: married with two children and a £500,000 estate
Sarah dies intestate in Edinburgh. She is married to David. They have two adult children, Emma and Jack. Here is what Sarah's estate looks like:
| Asset | Value |
|---|---|
| Family home (Edinburgh flat, jointly owned — Sarah's 50% share) | £200,000 |
| Bank accounts and savings | £120,000 |
| ISA and investments | £100,000 |
| Car and personal possessions | £30,000 |
| Pension death benefit (nominated to David) | £50,000 |
| Total estate for intestacy | £450,000 |
Note: the pension death benefit with a nominated beneficiary typically falls outside the estate, so we work with £450,000.
Heritable estate (property): £200,000 Moveable estate (everything else): £250,000
Step 1: Prior rights (David)
- House: David claims the house (£200,000 — well within the £473,000 limit). He gets the full property share.
- Furniture and contents: David claims £29,000 from the moveable estate for household contents. Moveable estate remaining: £221,000.
- Cash sum: David has surviving children, so the cash sum is £50,000. Moveable estate remaining: £171,000.
David's prior rights total: £279,000
Step 2: Legal rights
The remaining moveable estate is £171,000.
- David (spouse): one-third = £57,000
- Emma and Jack (children): one-third shared equally = £28,500 each
Total distributed through legal rights: £114,000 Remaining moveable estate (the "dead's part"): £57,000
Step 3: Free estate
The remaining £57,000 is the free estate. Children rank first in the hierarchy, so Emma and Jack share it equally: £28,500 each.
Final result
| Recipient | Amount | % of estate |
|---|---|---|
| David (spouse) | £336,000 | 74.7% |
| Emma (child) | £57,000 | 12.7% |
| Jack (child) | £57,000 | 12.7% |
David gets the lion's share, but not everything. If Sarah had wanted David to inherit the full £450,000, she would have needed a will.
The honest take
The worked example above is a relatively clean one — one property, clear assets, two children. Real life is messier. Blended families, estranged children, jointly owned property with complex title conditions, business assets — all of these make intestacy significantly more complicated and expensive. The legal fees for sorting out a contested intestate estate can easily exceed what a simple will would have cost. A mirror will for a couple in Scotland typically costs £300–£500 from a solicitor. That is cheap insurance.
Trust and Succession (Scotland) Act 2024: what changed?
The Trusts and Succession (Scotland) Act 2024 is the most significant reform to Scottish succession law in decades. While many provisions relate to trusts, several directly affect intestacy and inheritance.
Key changes affecting intestacy
- Power to uprate prior rights thresholds: The Scottish Government can now increase the house, furniture, and cash thresholds by statutory instrument, without needing primary legislation. This means thresholds can keep pace with inflation and property prices more easily.
- Cohabitant claims strengthened slightly: Courts now have broader guidance on factors to consider when a cohabitant applies for provision from an intestate estate (though the fundamental problem — that cohabitants must apply to court at all — remains).
- Technical fixes to the 1964 Act: Various amendments clarify how legal rights interact with trusts, liferents, and special destinations in property titles.
- Adopted children: Confirmation that adopted children have identical legal rights and intestacy claims as biological children in all circumstances.
The 2024 Act did not abolish the requirement for cohabitants to apply to court. If you are in an unmarried partnership, you still have no automatic inheritance rights in Scotland. A will remains essential.
Cohabitants and intestacy: the biggest gap in Scottish law
This is where Scottish intestacy law causes the most harm. If you live with your partner but are not married or in a civil partnership, you have no automatic right to inherit anything when they die.
Under section 29 of the Family Law (Scotland) Act 2006, a surviving cohabitant can apply to court for a share of the intestate estate. But:
- You must apply within 12 months of the death — miss the deadline and you get nothing
- The court has discretion — it is not guaranteed to award you anything
- The maximum the court can award is what you would have received as a spouse — but courts routinely award less
- You must prove you were cohabiting in a relationship that had "the nature of husband and wife" (or civil partners)
- The application costs money (legal fees of £5,000–£15,000 are common for contested cases)
This affects a growing number of people. The number of cohabiting couples in Scotland increased by 80.8% between 2001 and 2022, according to the National Records of Scotland. Yet the law has not kept pace.
Scotland vs England: intestacy comparison
| Feature | Scotland | England & Wales |
|---|---|---|
| System | Three layers: prior rights, legal rights, free estate | Single hierarchy based on family structure |
| Spouse gets everything? | Almost never (if children exist) | Yes, if estate under £322,000 |
| Children's automatic share | Yes — legal rights from moveable estate | Only if estate exceeds £322,000 |
| Legal rights (cannot be defeated by will) | Yes — spouse and children always have claim | No equivalent |
| Cohabitant rights | Must apply to court within 12 months (discretionary) | No rights at all |
| House protection | Prior right up to £473,000 | Spouse inherits if estate under £322,000 |
| Thresholds | House £473k, contents £29k, cash £50k/£89k | Statutory legacy £322,000 |
| Governing law | Succession (Scotland) Act 1964 + 2024 Act | Administration of Estates Act 1925 |
The single most important difference: in England, a surviving spouse with children gets the first £322,000 plus half of the remainder. In Scotland, the spouse goes through three separate layers and typically ends up with 60–80% of the estate rather than all of it.
For cohabitants, Scotland is actually slightly better than England. English law gives cohabitants zero rights — no court application process exists. In Scotland, at least you can apply, even if the outcome is uncertain.
Try it yourself
Work out exactly how your estate would be divided under Scottish intestacy rules — and see why making a will could change everything.
Open Scottish Intestacy CalculatorNo sign-up required.
What to do if someone dies intestate in Scotland
If a family member has died without a will, here is the practical process:
Step 1: Identify an executor
Without a will, there is no named executor. Someone must apply to the Sheriff Court for "appointment as executor dative." This is usually the surviving spouse, an adult child, or the nearest relative. A solicitor handles the court application.
Step 2: Obtain confirmation
Confirmation is the Scottish equivalent of English probate. The executor dative petitions the court to be confirmed as executor, listing all the assets and debts of the estate. This gives them legal authority to collect assets, pay debts, and distribute the estate.
Step 3: Gather and value assets
Every asset must be identified and valued at date of death. This includes property (a formal valuation is needed), bank accounts, investments, vehicles, personal possessions, and any debts owed to the deceased.
Step 4: Pay debts and inheritance tax
All debts, funeral costs, and any inheritance tax (IHT) must be paid before distribution. IHT is a UK-wide tax — the nil-rate band is £325,000 (£500,000 with the residence nil-rate band if passing to direct descendants). Transfers between spouses are exempt from IHT, but this exemption does not apply to cohabitants.
Agricultural and business property: the April 2026 APR/BPR changes
Scottish farming families face a specific IHT challenge following the Autumn Budget 2024 changes. From April 2026, Agricultural Property Relief (APR) and Business Property Relief (BPR) — which previously provided 100% relief on qualifying farmland and business assets — are now capped at a combined £2.5 million per person (raised from £1M in December 2025 after farmer protests). Above that cap, relief drops to 50%, meaning the excess is taxed at an effective 20% IHT rate (half of the standard 40%). Married couples can combine allowances for £5M of 100% relief.
This hits Scottish farming estates particularly hard. Scottish farms average 117 hectares — significantly larger than the UK average of 87 hectares — and prime Scottish farmland values of £10,000–£15,000 per acre mean many family farms exceed the £2.5M threshold. A 400-acre arable farm worth £4M now faces a potential IHT bill of £270,000 on death that wouldn't have existed under the old unlimited relief.
For intestate farming estates, this creates an urgent problem: the IHT bill must be paid before distribution, but the assets may be illiquid farmland. Families may be forced to sell land to pay the tax — the exact outcome the original APR was designed to prevent.
If you own a Scottish farm or agricultural land worth more than £2.5 million (or £5M as a couple), making a will is now critical. Without one, intestacy rules may force asset sales to cover IHT. Speak to a solicitor experienced in Scottish agricultural succession about lifetime transfer strategies, partnership structures, and the new 10-year payment option for APR/BPR-related IHT bills.
Step 5: Distribute under intestacy rules
Apply the three-layer system: prior rights first, then legal rights, then free estate. Each beneficiary receives their share.
The entire process — from death to final distribution — typically takes 6–12 months for an intestate estate, compared to 3–6 months for an estate with a straightforward will. Legal costs are also higher: £3,000–£8,000 for an intestate estate versus £1,500–£3,000 for a simple estate with a will.
Frequently Asked Questions
Does my spouse automatically inherit everything if I die without a will in Scotland?
No. In Scotland, the surviving spouse receives prior rights (house up to £473,000, contents up to £29,000, cash sum of £50,000 or £89,000) and then one-third or one-half of the remaining moveable estate through legal rights. If there are children, the spouse typically receives 60–80% of the total estate — not 100%. Only a will can ensure your spouse gets everything.
What happens if an unmarried partner dies without a will in Scotland?
The surviving cohabitant has no automatic right to inherit. They must apply to the Sheriff Court within 12 months of the death under section 29 of the Family Law (Scotland) Act 2006. The court decides whether to award anything, and how much. Awards are discretionary and can range from nothing to the equivalent of a spouse's share. Legal fees for the application typically cost £5,000–£15,000.
Do stepchildren inherit under Scottish intestacy?
No. Stepchildren have no automatic inheritance rights under Scottish intestacy law unless they were legally adopted. Only biological children and legally adopted children are recognised. If you want stepchildren to inherit, you must make a will.
Can I challenge Scottish intestacy rules?
Legal rights (the spouse and children's share of moveable estate) cannot be defeated, even by a will. However, the distribution of the free estate follows a fixed hierarchy that cannot be challenged. If you believe you should have inherited and did not, the main route is a claim as a cohabitant (within 12 months) or a challenge to the validity of any existing will.
How much does it cost to sort out an intestate estate in Scotland?
Typical legal costs for administering an intestate estate in Scotland range from £3,000 to £8,000, depending on complexity. If the estate involves property, contested claims, or a cohabitant application to court, costs can rise to £10,000–£20,000 or more. By comparison, making a will typically costs £150–£300 for a single will or £300–£500 for mirror wills.
Related Articles
- Cohabiting Couples' Rights in Scotland: The Common Law Marriage Myth — what cohabitants actually get (and don't get) under Scottish law
- Scottish Income Tax Rates 2026/27 — understand how your salary is taxed in Scotland
- Capital Gains Tax in Scotland 2026/27 — CGT on property, investments, and assets
- Scotland vs England Tax Comparison — side-by-side comparison of all major taxes
- LBTT Explained: Scotland's Property Tax for 2026/27 — full breakdown of LBTT bands and rates
This article is for informational purposes only and does not constitute financial, tax, or legal advice. Tax rates and thresholds can change — always verify current rates with Revenue Scotland, HMRC, or mygov.scot, and speak to a qualified financial adviser for advice specific to your circumstances.
Sources
- Scottish Government — Succession (Scotland) Act 1964
- Scottish Parliament — Trusts and Succession (Scotland) Act 2024
- Scottish Government — Family Law (Scotland) Act 2006, Section 29
- mygov.scot — What happens when someone dies without a will
- Citizens Advice Scotland — Intestacy in Scotland
- National Records of Scotland — Household composition statistics
- GOV.UK — Inheritance Tax thresholds
- Revenue Scotland — LBTT and property transactions