Legal Rights – Where the Deceased Has Not Left a Will
When a person dies without leaving a valid Will, he or she is said to have died “intestate”.
The estate requires to be distributed amongst the surviving relatives according to the rules of intestacy set out in the Succession (Scotland) Act 1964.
According to the rules an intestate estate is distributed, after payments of debts, in the following order:-
- Prior Rights
- Legal Rights
- Free Estate
1. Prior Rights
A surviving spouse or registered civil partner has a right to:
- The deceased’s dwelling house (or a share) up to a value of £473,000.
- A share of the furniture, furnishings etc up to a value of £29,000.
- Cash up to a value of £89,000, if there are no surviving children or descendants of children or £50,000 if the deceased was survived by children.
2. Legal Rights
If the estate has not been exhausted by the satisfaction of the surviving spouse or registered civil partner’s prior rights, then the surviving spouse or registered civil partner is also entitled to claim legal rights in the estate. Legal rights only apply to the net moveable estate (money, investments and possessions) and do not include any heritable property (land or buildings). A surviving spouse or registered civil partner can claim a one half share of the net moveable estate if there are no surviving children, but only a one third share if there are surviving children.
Likewise, the surviving children can claim a one half share of the net moveable estate between them, if there is no surviving spouse or registered civil partner; or a one third share if there is a surviving spouse or registered civil partner. The surviving children’s share is known as Legitim.
3. The Free Estate
This is the remainder of the estate after funeral expenses, debts and prior and legal rights have been settled. The order of those entitled is as follows:
- Children, with issue of a predeceasing child taking that child’s share (where a child dies before the deceased and if they had children, those children (grandchildren) will take that child’s share
- Parents, brothers and sisters with issue of a predeceasing brother or sister taking that person’s share (one half each)
- Brothers and sisters and their children if there are no surviving parents
- Parents (if no brothers or sisters or their children)
- Spouse or civil partner
- Uncles and aunts, with children of a predeceasing uncle or aunt taking that person’s share
- Grandparents’ brothers or sisters or their children
- Remoter relatives (or their living descendants) step by step until someone is found to inherit.
If there is no surviving spouse or registered civil partner, the whole estate would be distributed as per the above list. Where no relatives, however remote, can be traced the Crown inherits the estate.
Please note that cohabitees (unmarried partners) are not automatically entitled to Prior of Legal Rights, although there is a provision for them, under Section 29 of the Family Law Scotland Act 2006, which gives the Courts authority to make provision for them.
This Briefing has been produced for information purposes only and is based on the law and other information available at the time of writing. We cannot be held responsible for any losses incurred through acting or failing to act on the basis of anything contained in this Briefing.
If you require advice on any of the matters referred to, please contact us so that we can advise you, taking account of your own particular circumstances and requirements.