What happens if you die without a Will?

Many people assume their estate (which includes property, money, and possessions) will automatically pass to their partner or closest family member when they die. However, if you die without a valid Will in Scotland, the law – not you – decides who inherits your assets. This situation is known as intestacy.

At Ness Gallagher Solicitors, we often advise families who are surprised by how the rules of intestacy work. In many cases, the outcome can be very different from what the deceased person may have intended.

If the deceased was married or in a civil partnership, the surviving spouse or civil partner is usually entitled to certain “prior rights.” These typically include rights to:

• The family home (up to a certain value)
• Household contents up to a set limit
  
• A cash sum from the estate
  

These rights are paid before the remainder of the estate is distributed.

Importantly, if the deceased leaves no children or grandchildren, the surviving spouse or civil partner may inherit the entire estate.

After prior rights are satisfied, “legal rights” may apply. In Scotland, children (including adopted children) and a surviving spouse or civil partner have certain automatic rights to claim a share of the deceased’s moveable estate (such as money, investments, and personal possessions).

These rights exist even if there had been a Will, and they ensure close family members cannot be completely disinherited.

Once prior rights and legal rights are dealt with, any remaining estate (sometimes called the “free estate”) is distributed according to a strict order set by law.

Typically, inheritance passes in the following order:

• Children and grandchildren
• Parents
  
• Brothers and sisters (or their children)
  
• Uncles and aunts
  
• Grandparents
  
• More distant relatives
  

The law works down this list until eligible relatives are found.

What about unmarried partners? One of the most common surprises in Scottish intestacy law is that unmarried partners do not automatically inherit.

A cohabiting partner may apply to the court for financial provision from the estate, but this is not guaranteed and must be done within strict time limits.

This means a long-term partner could receive little or nothing if there is no Will in place.

Dying without a Will can lead to unintended consequences, including:

• Loved ones not receiving what you expected
• Unmarried partners or stepchildren inheriting nothing
  
• Family disputes over the estate
  
• Delays and additional legal costs during estate administration
  

A properly drafted Will allows you to clearly state your wishes, appoint executors, and ensure your estate is distributed in the way you intend. It is not uncommon for us to see situations whereby estranged children still inherit from an estate, or indeed when a partner is not able to remain in a property because they were not married, and there was no Will to state where the estate should go.