Legal Guides

We use plain and simple English to give you an overview of the most common areas of law.

What happens when someone dies without a Will in Scotland?

When someone dies without having made a will in Scotland, this is known as dying ‘intestate’ or ‘intestacy’. But what actually happens? Who do that person’s assets pass to, and who is in charge of distributing the estate. This guide looks at the law and procedure in Scotland where someone dies without making a will.

Do I need to make a will?

There is no legal requirement in Scotland to make a Will, however there are a number of reasons as to why you might choose to do so. The first is of course, peace of mind and control over how your assets will be distributed after you die. If you die intestate, your estate will be distributed in line with the law of intestacy, which may not reflect your wishes.

How will my estate be distributed if I die intestate?

The law of intestacy is set out in The Succession (Scotland) Act 1964. The law is designed to make the distribution of your estate as fair as possible, but has no regard as to what you may wish to happen to your property.

The first thing that happens after someone dies intestate is that the court will be informed, and an ‘executor dative’ will be appointed to deal with the distribution of the estate. For someone to be appointed as the executor dative, an application has to be lodged with the local Sheriff Court. The executor dative appointed must distribute your estate in line with the rules set out in the 1964 Act.

The first matter the executor dative will address is known as ‘Prior Rights’ which is the right of your spouse to your property. They may receive:

  • A payment from the value of your home up to £473,000
  • A payment from the value of the furnishings in your home up to £29,000
  • A payment from the value of your estate, which will depend on whether you have any surviving children

The executor dative will then deal with ‘Legal Rights’ which are the rights of your spouse, children and/or other family members to any money in your estate.

Finally, the executor dative will distribute the ‘Free Estate’ which is anything left over after the rights of your spouse, children and other family members have been satisfied. This will normally result in a payment to family members.

Where you die intestate, there is no way to control how your estate is distributed, and the division of your estate under the law of intestacy may not reflect the way you would have wished your estate to be distributed. For this reason, it is advisable to ensure that a will is put in place.

To find out more about drafting a will in Scotland, contact Family Law Aberdeen

DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Family Law Aberdeen directly.

Published on 4th April 2018
(Last updated 7th May 2021)