What Happens If You Die Without a Will in Scotland?

No one likes to think about dying, but it’s important to plan for what happens after you’re gone.

One of the most important steps you can take is to make a Will. If you don’t, your estate will be dealt with under the laws of intestacy, which means the law decides who gets what — not you.

Here’s what happens if you die without a Will in Scotland:

Your estate is considered “intestate”

If you die without leaving a valid Will, you are said to have died intestate. This means your money, property, possessions, and debts must be dealt with according to the Succession (Scotland) Act 1964.

This law sets out a strict order of who inherits your estate. Your wishes — even if known to your family — will not be taken into account unless they are in a valid Will.

Your spouse or civil partner does not automatically inherit everything

Many people believe their spouse or civil partner will inherit everything if they die without a Will — but this is not always the case in Scotland.

The surviving spouse or civil partner is entitled to certain prior rights and legal rights, but these might not cover your whole estate. If you have children, even estranged children, or other family members, they may also be entitled to a share.

“Prior Rights” come first

The surviving spouse or civil partner is entitled to “prior rights” — a specific entitlement from the estate before anything else is shared out.

This includes:

• The family home (up to £473,000 in value) if they lived there.
• Furniture and furnishings in the home (up to £29,000).
• A cash sum — £50,000 if there are children, or £89,000 if there are none.

These values are fixed by law and may not reflect the actual value of the estate or the survivor’s needs. If your home is worth more than the limit, it may have to be sold.

“Legal Rights” come next

Legal rights apply only to the moveable estate — things like money, cars, investments, and personal possessions (not land or buildings). Both a surviving spouse/civil partner and any children are entitled to legal rights.

• If there is a surviving spouse/civil partner and children:  Each gets one-third of the moveable estate.
• If there is only a spouse/civil partner:  They get one-half of the moveable estate.
• If there are only children:  They get one-half, split equally among them.

These rights are automatic and apply even if the rest of the estate has been inherited under prior rights or shared out under intestacy rules.

The rest is shared under intestate rules

After prior rights and legal rights are dealt with, whatever is left is shared out according to a fixed order set by law.

The order of inheritance is:

1. Children (and if any have died, their children inherit their share)
2. The surviving spouse or civil partner will inherit the free estate if the deceased is not survived by descendants.
3. Parents and siblings (shared between them)
4. Parents
5. Siblings
6. More distant relatives, e.g., aunts, uncles, cousins
7. Ultimately, if no relatives can be found, the estate passes to the Crown (bona vacantia).

You have no say over this process if you don’t leave a Will. Close friends, carers, or unmarried partners will not inherit anything unless named in a Will.

Unmarried partners get nothing

If you live with someone but aren’t married or in a civil partnership, they have no automatic right to inherit from your estate if you die without a Will.

They may apply to court for a share under Section 29 of the Family Law (Scotland) Act 2006 — but this must be done within 6 months of death (although this will increase to 12 months once the provisions of section 78 of the new Trusts and Succession (Scotland) Act 2024 are brought into force) and the court has complete discretion over what (if anything) is awarded.

The process takes longer and may cost more

Dying without a Will means no executor has been appointed. Someone (usually a family member) must apply to the court to be appointed as executor dative.

This involves more paperwork, legal costs, and often a bond of caution (a type of insurance policy), which is an extra expense and delay. If you have a Will, you can name an executor and save your family this stress.

You lose control over special wishes

Without a Will, there’s no way to ensure:

• Specific gifts go to the right people
• Guardians are appointed for your children
• Charities or friends benefit from your estate
• Your funeral wishes are followed

Writing a Will puts you in charge and makes life easier for your loved ones.

Legal rights apply even with a Will

Even if you make a Will, you can’t disinherit your spouse, civil partner, or children completely. They are still entitled to legal rights out of your net moveable estate (not including land or buildings) unless they voluntarily give them up. If not discharged Legal Rights do not expire until twenty years after the date of death.

This means careful planning is needed if you want to control how your estate is shared out, especially in blended families.

How to Make a Will in Scotland

Making a Will in Scotland is easier than many people think — and it can save your family a great deal of stress and confusion.

Here’s what you need to know:

Use a solicitor if you can

While you can write your own Will, it’s best to get legal advice to make sure:

• It’s valid and properly signed
• It clearly states who should inherit what
• It covers all your property and personal circumstances

Mistakes in a DIY Will can lead to delays, legal challenges, or parts of your estate being treated as if there was no Will at all.

You must be over 12 and have mental capacity

In Scotland, you can make a Will from the age of 12 if you understand what you are doing and the effect of the document.

It’s important to be of sound mind when making a Will — someone who is confused or under pressure from others may not have the capacity to make a valid Will.

Your Will must be in writing and signed

For your Will to be legally valid in Scotland:

• It must be in writing (typed or handwritten)
• You must sign it at the bottom of every page
• The signature on the last page should be witnessed by one person who knows you
• It should be  dated.

Your witness must not be someone who is receiving anything from the Will. Ideally, they should be independent and over 16.

Choose your executors carefully

You should name one or more people to act as your executors — the people who will deal with your estate when you die.

Executors can be family members, friends, or professionals (such as a solicitor). It’s important to ask them first and make sure they’re willing to take on the role.

Keep it up to date

You should review your Will regularly — especially if:

• You get married, divorced, or enter a civil partnership
• You have children or grandchildren
• Someone named in the Will dies
• Your financial situation changes

Updating your Will ensures it continues to reflect your wishes. Don’t just write on the old Will — make a new one properly.

Store it safely

Your original Will should be stored in a safe place where it can be found after your death.  Many people keep their Will with their solicitor, You should also tell your executors where to find it.

Final Thoughts

Making a Will gives you peace of mind and ensures your wishes are followed. If you die without one, the law steps in — and your loved ones may face unnecessary worry, delay, and expense.

If you’re ready to make a Will or need advice on updating an existing one, a solicitor can guide you through the process and make sure everything is done properly.

If you’d like guidance tailored to your own circumstances, we’re here to help. Contact our experienced Private Client Team on 01324 622 888 or help@randa-fa.co.uk for expert advice on any aspect of making a Will or estate planning in Scotland.