The law of intestacy in Scotland
An introduction to the law of intestacy in Scotland
Where a person dies without making a will they are said to have died “intestate”. The property and assets of a person who dies intestate are distributed to certain of their surviving relatives in accordance with the rules of intestacy.
Under Scottish law certain beneficiaries have “prior rights” and “legal rights”. Those who have prior rights take priority over those who have legal rights. After any such rights have been satisfied the estate is distributed to any beneficiaries who do not have prior or legal rights.
Who has prior rights and what rights do they have?
The deceased’s spouse or civil partner has prior rights.
If the deceased owned a house and his or her spouse or civil partner lived there, then the surviving spouse or civil partner inherits the house as long as its value is less than £300,000. The surviving spouse or civil partner also inherits the furniture and furnishings at that house up to the value of £24,000.
If the house is worth more than £300,000 then the surviving spouse or civil partner will inherit the sum of £300,000.
The surviving spouse or civil partner also inherits money from the deceased’s estate. The amount they inherit will depend upon whether the deceased has any surviving children, grandchildren or great-grandchildren. If the deceased didn’t leave any surviving children, grandchildren or great-grandchildren then the spouse or civil partner will inherit the first £75,000 of the deceased’s estate. If the deceased did leave children, grandchildren or great-grandchildren then the spouse or civil partner will inherit the first £42,000.
Who has legal rights and what rights do they have?
Surviving spouses, civil partners and children of the deceased have legal rights to the deceased’s “moveable estate”.
The term “moveable estate” is used to describe assets which can be physically moved such as money, cars, furniture and shares. Assets such as land and buildings, which cannot be moved, are referred to as the deceased’s “heritable estate”.
If the deceased left children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one third of the moveable estate. If the deceased did not leave any children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one half of the moveable estate.
If the deceased left children and a spouse or civil partner, then his or her children will inherit one third of the moveable estate between them. If, therefore, the deceased left 2 children they will each inherit one sixth of the moveable estate.
If the deceased did not leave a spouse or civil partner, then his or her children will inherit one half of the moveable estate between them.
Grandchildren and great-grandchildren only have legal rights if their own parents die before the deceased. Where that happens they will inherit the share, which their parent would have been entitled to.
Who inherits the balance of the estate?
The balance of the moveable estate and the heritable estate “devolves” to the deceased’s relatives in the following order:
Children;
Parents and siblings (if the deceased leaves parents and siblings then the parents will inherit half of the balance of the estate and the siblings will inherit the other half);
Spouse or civil partner;
Uncles and aunts;
Grandparents;
Brothers and sisters of grandparents;
Certain other relatives such as great-grandparents, brothers and sisters of great-grandparents and great-great-grandparents.
If the deceased leaves relatives in one of the above categories those relatives will inherit the entire balance of the estate and any other surviving relatives in a category below them will not inherit anything.
If the deceased does not leave any relatives in the categories set out above, the estate may pass to the Crown.
If a family member has children and dies before the deceased that person’s children will inherit their parent’s share of the estate.
Siblings and half siblings can both inherit. However, if there are siblings and half-siblings then the siblings will inherit and the half-siblings will not.