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When someone in Scotland dies without having left a Will, his or her estate is known as an intestate estate.

Once all debts and liabilities have been met from the deceased’s estate, a spouse or civil partner has certain 'prior rights of a surviving spouse or civil partner' in the deceased’s intestate estate. These 'prior rights' are essentially a first claim on the estate before any other legal rights. The estate is divided into heritable: houses, buildings and land; and moveable: any other houses, buildings or land, for example, stocks, shares, vehicles, money, artwork, jewellery, or anything else of value.

Prior rights

These 'prior rights' entitle the surviving spouse/civil partner to the house in which the couple lived at the time of the deceased’s death (providing that the house was owned either solely by the deceased, or jointly as a couple), and any furnishings and furniture in the house (up to the value of £24,000). In certain circumstances, for example, where the house is part of a shop or a farm, or where the residential property is worth more than £300,000, then the entitlement is not to the house itself, but to its value up to £300,000.

If the deceased also had children or grandchildren, the surviving spouse/civil partner would also be entitled to the first £42,000 out of the estate. Where there are no children or grandchildren, then the surviving spouse/civil partner’s entitlement would be to the first £75,000.

Legal rights

The surviving spouse/civil partner is entitled a share of the deceased moveable estate. If the deceased has children, the spouse/civil partner is entitled a one third share. If there are no children or grandchildren, the surviving spouse/civil partner is entitled a half share of the moveable estate.

Similarly, if there is no surviving spouse/civil partner, then the children are entitled a half share of the moveable estate. The children are entitled to an equal claim. If a child of the deceased has died before the deceased, their share may be claimed by their descendants – this principle is known as 'representation'.

Other rights on intestacy

Once the prior rights and legal rights have been fulfilled, the remainder of both the heritable and moveable estates is able to be shared to other surviving relatives in the following order:

Intestacy in Scotland Connecting you with the right lawyer Children take the whole of the remainder of the estate Brothers and sisters take the whole of the remainder of the estate Either or both parents take the whole remainder of the estate Spouse/civil partner takes the whole of the remainder of the estate Uncles or aunts take the whole of the remainder of the estate Grandparents take the whole of the remainder of the estate Brothers and sisters of any grandparents (on either side) take the whole of the remainder of the estate If there are both surviving parents and siblings, the remainder is shared between the parents and siblings, with half going to each

Claims by cohabitants

Under The Family Law (Scotland) Act 2006, those in cohabitating relationships were granted some legal rights and protection if the relationship should end. The Act makes provision for a partner of a deceased person to apply to the court for a share of the deceased’s estate where the deceased died intestate. However, there is a very tight timeframe for doing so, and any application must be made within six months of the deceased’s death.  If you are considering making a claim, it is crucial that you receive the right legal advice and guidance as soon as possible.

Help from Oratto today

Our Oratto member probate solicitors can give you expert advice and tailor a claim based on your individual circumstances.  You can either use our Match Service, browse our member solicitor profiles to find the right solicitor for you; or you are always welcome to call our national helpline.