Intestacy in Scotland: Understanding Scottish succession rules

This blog is a 3-minute read.

Our latest blog looks specifically at the rules of intestacy in Scotland and how they differ from those in England and Wales.
The rules of intestacy in Scotland are led by the Succession (Scotland) Act 1964. The act details how a Deceased’s estate should be divided when a Will hasn’t been prepared, and due to the difference in rules to their southern counterparts, legal professionals should be aware of the Scottish succession rules to avoid the scenario of distributing incorrectly.

Succession rules in Scotland when there is a surviving spouse or civil partner

Many are under the impression that when a spouse or civil partner passes away without a Will, the surviving other half will inherit the entirety of the Deceased’s estate. Unfortunately, it’s not quite that simple, and scenarios of intestacy in Scotland must be broken down into three parts:

prior rights (of the surviving spouse or civil partner),
legal rights,
and the free estate.

Prior rights

In intestacy scenarios in Scotland, the surviving spouse or civil partner is provided with three rights:

A housing right up to a maximum of £473,000. If the property value is below this threshold, it’s capped at the property value. In most cases, the surviving spouse or civil partner must be a resident in the property at the time of death.
Entitlement to household contents up to £29,000. Similarly to the previous right, if the value is below this threshold, it’s capped at the household contents value.
Entitlement to a right of cash. If the Deceased had surviving children, the spouse or civil partner is entitled to a cash right of £50,000. However, if the Deceased had no surviving children, the entitlement rises to £89,000.

Legal rights

A fixed share of the moveable estate can be claimed by the surviving spouse or civil partner under legal rights. This includes all assets (excluding land and buildings) and is also applicable when a Will has been left behind. The share of assets is dependent on who survives the Deceased. For example:

If only a spouse or civil partner survives the Deceased, they are entitled to one half of the assets.
If only children survive the Deceased, they are also entitled to one half of the assets divided among them equally.
If both a spouse or civil partner and children survive the Deceased, the spouse or civil partner is entitled to a third of the assets, and the children are entitled to another third of the assets divided among them equally.

Free estate

The remainder of the estate is known as the free estate. This is the residue that hasn’t been used after the prior rights and legal rights are satisfied. Under the act’s terms, the categories of the Deceased’s relatives that can potentially inherit follow an order of priority:

1. Children and adopted children

If the Deceased’s children have already died and are survived by their own children (in effect the Deceased grandchildren), they will be entitled to their parent’s share. In scenarios where all children have predeceased, grandchildren will inherit the free estate.

2. Parents and siblings

If no descendants survive the Deceased, the free estate is divided into two; one half is divided between the Deceased’s parent(s) and the other half is divided between the Deceased’s siblings.
However, if a sibling has predeceased leaving surviving children, the Deceased’s nieces and/or nephews (and more remote relatives should they also have predeceased) will receive their parent’s share of the free estate.
In scenarios where either only parents or siblings survive, they will take the whole free estate.
When half-siblings make up a family, they will only receive a share of the free estate when there are no siblings who share both parents with the Deceased, nor descendants of those siblings.

3. The surviving spouse or civil partner

If no children, parents, or siblings survive the Deceased, it is at this point that the surviving spouse or civil partner will inherit the free estate.

4. Aunts and uncles

If none of the above has survived the Deceased, the maternal and paternal sides of the family, starting with aunts and uncles of the Deceased, will be explored. Where aunts and uncles have predeceased, their descendants are to inherit the free estate.

5. Grandparents

If aunts, uncles, or their issue have predeceased, grandparents, followed by great-uncles and aunts of the Deceased, are next in line to succession. This is then followed by very remote ancestors, including great-grandparents or great-great-grandparents.

6. Ultimus haeres

At this point, when there are no surviving relatives whatsoever, the Crown will take the whole free estate, known as ultimus haeres.

What is ultimus haeres?

Where an individual living in Scotland dies intestate and has no known or traceable successors as listed in the order of priority above, their assets will fall to the Crown in Scotland known ultimus haeres (meaning “last heir”). The assets are gathered in by the King’s and Lord Treasurer’s Remembrancer Office, and once debts and funeral expenses have been paid from the estate, the remainder will fall to the Crown.

Who doesn’t benefit under intestacy rules in Scotland?

Currently, provisions for half-siblings in intestacy cases in Scotland are very restricted. The Succession (Scotland) Act 1964 does not make provisions for cohabitants or step-children of a Deceased person. A claim can be made by cohabitants under the Family Law (Scotland) Act 2006. However, this is not automatic and will need to be applied to the court. If awarded, this would see the cohabitant receive equal shares as if they were married or in a civil partnership.

How Title Research can help resolve intestacy cases in Scotland

When instructed on an intestacy case, it’s important that legal legal professionals source specialist genealogy work that is appropriate for insurance.

At Title Research, we are commonly asked to repeat the work of other genealogists due to their reports being rejected for insurance; fortunately, this repeated work has often led to additional beneficiaries being located, at less than a third of the price of the original provider.

Our costs are upfront, avoiding delays further down the line when unexpected fees arise. We aim to be as honest and direct as possible, helping you to retain strong relationships with your clients by resolving cases openly and efficiently. There are three main approaches to genealogy fees:

Contingency
Time and expense based
Fixed

To learn more about the advantages and disadvantages of these fee types, click here.

Title Research is an expert in genealogical research with an excellent success rate for locating missing beneficiaries and tracing thousands of missing people every year. If you would like to discuss how Title Research can help you with intestate estates in Scotland, call our Client Services Team on 0345 87 27 600 or fill in the form below.

Topics: Family tree reconstruction, Intestacy, Beneficiaries