AA Legal Documents

Dying without a Will

Contents

Dying intestate

A person who dies without making a Will, or without making a valid Will, dies intestate. The property belonging to such a person is inherited according to a set of rules set out in an Act of Parliament passed in 1964. Instead of the property going to who might have been the testator's chosen beneficiaries, it is left to other relatives in a particular order.

Total intestacy

If a person dies without leaving a valid Will, they are said to die intestate. This occurs when the deceased never made a Will at all, cancelled their Will and did not make a new Will or because the Will that was made is invalid.

Partial intestacy

A person dies partially intestate if they leave a valid Will, but the Will fails to dispose of all the assets.

If, as is usual, the Will contains a valid legacy of residue, a partial intestacy is avoided. A legacy of residue is one which ensures that all the property which has not been specifically dealt with in the Will (the residue) passes to chosen beneficiaries nominated by the person making the Will (the testator).

Who gets the estate on intestacy?

Where somebody leaves no Will or, if they leave a Will disposing only of part of their estate, the undisposed of part of the estate is dealt with according to rules set out in an Act of Parliament passed in 1964 called the Succession (Scotland) Act. Various parties have rights to the estate, dealt with in the following sequence:

Prior rights

Where the deceased left a spouse or civil partner, he or she is entitled to prior rights.

There are various elements to prior rights as follows:

A housing right

The rules apply to any dwellinghouse in which the surviving spouse or civil partner was ordinarily resident at the deceased's date of death. Where, at that stage, the deceased had a relevant interest in such a house (i.e. the interest of an owner or tenant, subject in either case to any outstanding secured debt), the surviving spouse or civil partner is entitled to receive the relevant interest, provided that does not exceed the value of £473,000, or in the case where the relevant interest exceeds that sum, a cash sum of £473,000. There are exceptions to this rule where the dwellinghouse forms only part of subjects comprised in one tenancy (e.g. where there is one house let out on one tenancy but it comprised two flats and the deceased and spouse occupied only one of the flats) or where it was used by the deceased for his business and the value of the estate as a whole would be significantly diminished if the house was disposed of other than with the assets of the business. In that case, the surviving spouse or civil partner is entitled to the value of the interest in question up to £473,000. Where the deceased had two or more houses to either or all of which the surviving spouse or civil partner might be entitled, the spouse or civil partner has a period of 6 months from the date of death to elect which house they wish to claim.

Furniture and plenishings

The surviving spouse or civil partner is also entitled to the furniture and plenishings (stated in the legislation to include garden effects, domestic animals, plate, plated articles, linen, china, glass, books, pictures, prints, articles of household use and consumable stores, but not any article or animal used by the deceased for business purposes, money or securities for money nor any heirloom (itself stated to mean any article which has associations with the deceased's family of such a nature that it ought to pass to a member of that family rather than to a spouse or civil partner of the deceased)) of the dwellinghouse in which he or she was ordinarily resident at the time of the deceased's death up to a value of £29,000. Again, where there are two or more dwellinghouses against which a claim might lie, the surviving spouse or civil partner has a period of six months from the date of the deceased's death to elect which house they want to claim against. Provision is laid down in the legislation for arbitration in the event that there is any disagreement regarding the value of furniture and plenishings.

Cash right

Where the deceased was not survived by children, the surviving spouse or civil partner is entitled to financial provision to the extent of £89,000. Where there are surviving children, the right is instead £50,000. Interest runs upon that sum from the date of death at a prescribed rate.

Legal rights

After satisfaction of the aforementioned prior rights, or if there are none, the surviving spouse or civil partner and children then have a legal rights claim on the remaining assets in exactly the same way as if the deceased had left a Will. (See 'Family left out of Will'.)

Rest of the estate

After paying out any valid claims made to prior and legal rights, or if there are none, the estate is divided up according to rules laid out in the Act of Parliament as follows, bearing in mind that representation applies (i.e. if somebody would have been entitled to a share of the estate but has predeceased leaving descendants, the descendants are entitled to the share which their parent would have taken had he or she survived). The sequence of priorities is as follows:

  • Where children are left, they are entitled to the whole of the estate.
  • Failing that, where there are no children but the deceased left parents and siblings, the parents are entitled to one half of the estate and the siblings the other half.
  • Failing all of the foregoing, where the deceased left siblings, but no parents, the siblings are entitled to the whole of the estate.
  • Failing all of the foregoing, where the deceased left parents, but no siblings, the parents are entitled to the whole of the estate.
  • Failing all of the foregoing, where the deceased left a spouse or civil partner, the spouse or civil partner is entitled to the whole of the estate.
  • Failing all of the foregoing, where the deceased left uncles or aunts, they are entitled to the whole of the estate.
  • Failing all of the foregoing, where the deceased left grandparents, they are entitled to the whole of the estate.
  • Failing all of the foregoing, where the deceased left brothers and sisters of any grandparents, they are entitled to the whole of the estate.
  • Failing all of the foregoing, where the deceased left no relatives in any of the foregoing categories, the deceased's ancestors (other than grandparents) generation by generation successively have rights to the whole of the estate according to the principle that the brothers and sisters of any ancestors have a right to the estate before the priority moves to the ancestors in the generation above.

There are slightly complex rules where two or more people in any of the foregoing categories have a right to the estate. Where they are the same degree of relationship to the deceased the estate is divided among them equally. In any other case (i.e. where representation applies) the estate is divided at the level nearest in degree of relationship to the deceased, counting for the process of division the ancestors of claimants who are of a remoter degree of relationship and are entitled by virtue of representation. Those of remoter degree of relationship take their ancestor's share and divide it among themselves according to the same rules. For example, if a deceased had two children A and B, but B had predeceased him leaving two children C and D (grandchildren of the deceased), A will take a one half share and C and D will take a one quarter share each because they represent their deceased parent B.

If there is absolutely nobody entitled to share the estate, it goes to the Crown.