What happens if you die without a will in Scotland?
Scotland has its own intestacy rules and they are not the English ones. They are also considerably more favourable to a surviving spouse and considerably harsher to a surviving partner who was never married.
The order of distribution
An intestate estate in Scotland is distributed in three stages, and they run in this order.
- Prior rights. A surviving spouse or civil partner takes the interest in the family home up to a statutory limit, the furniture up to a further limit, and a cash sum, with the cash sum being larger where there are no children. These figures are set by regulations and are uprated from time to time.
- Legal rights. From what remains of the moveable estate, the spouse or civil partner takes one third if there are children, or one half if there are none. The children share one third between them if there is a surviving spouse, or one half if there is not.
- The free estate. Whatever is left passes down a statutory order of relatives, beginning with children, then parents and siblings, and continuing outward.
In many estates the spouse takes everything
Because prior rights are satisfied first and the statutory limits are substantial, in a great many ordinary Scottish estates the surviving spouse takes the whole of it and the children receive nothing. That is often not what the deceased assumed, and it is often not what they would have wanted.
If you were living together but not married
Six months, and the court has a discretion
A surviving cohabitant has no automatic entitlement whatsoever. They may apply to the court for a discretionary award, and that application must currently be made within six months of the death. Six months is short, it runs while the family is grieving, and the court has no power to extend it. Parliament has legislated to extend the period to twelve months, but at 12th August 2026 that provision has not been brought into force. Anyone in this position should work to the six month deadline and take advice at once.
Even where an application is made in time, the court cannot award more than a spouse would have received, and the outcome is discretionary. A will removes the problem entirely.
Children
All children of the deceased inherit equally, whether or not their parents were married to each other, and adopted children are treated as children of the adopting family. Stepchildren who were never adopted inherit nothing on intestacy.
Who administers the estate
Where there is no will there is no named executor. A relative applies to the sheriff court to be appointed executor dative, and in most cases a bond of caution, which is a form of insurance, must be obtained before confirmation is granted. That requirement adds cost and delay and is avoided entirely where there is a will.
The fix takes an hour
A will costs a fraction of what an intestate estate costs to administer, appoints executors you have chosen, avoids the bond of caution, and allows you to provide for a partner, a stepchild or a charity, none of whom the intestacy rules will help. It cannot defeat the legal rights of a spouse or children, which is a feature of Scots law rather than a defect in the will, but it settles everything else.
A note on this page
This is general information about how the law works in Scotland. It is not advice about your situation and it cannot be, because we do not know your circumstances. Nothing here should be relied on as a substitute for speaking to a solicitor about your own case.
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