What are the intestacy rules in Scotland?

When someone dies intestate, that means they have died without making a will or any will that they have left is not valid in law for reasons such as not having been properly witnessed, or if the person was not of sound mind when they made the will.

The first thing that needs to be done is to appoint an executor dative, since the lack of a will mean there is no executor to administer the affairs of the estate. The executor dative will most commonly be a surviving spouse or civil partner or another close family member. Once the executor dative has been appointed by the Sheriff Court, he or she can apply to the Court for Confirmation which means they will have the legal authority to deal with the affairs of the estate. The executor will also need to deal with HMRC on the issue of inheritance tax unless the estate is worth less than £36,000.

Once Confirmation has been granted, the executor needs to distribute the property and money contained in the deceased person’s estate which is done according to a set of rules called the rights of succession.

The first of these rules are the Prior Rights. When all of the estate’s debts and liabilities have been paid, a surviving spouse or civil partner will be entitled to the house that he or she lived in with the deceased at the time of death. They will also inherit the furnishings in the house up to a value of £24,000. If the house is worth more than £300,000, the spouse or civil partner will inherit the first £300,000 of the value of the house. Under prior rights, the spouse or civil partner will be entitled to the first £42,000 of the estate if there are also surviving children. If there are no children surviving, the entitlement rises to £75,000.

Next in priority come the Legal Rights which only come into play after the Prior Rights have been met. Legal Rights give the spouse or civil partner and children of the deceased the right to inherit from the moveable estate. In Scots law, the moveable estate includes such things as cash, shares, vehicles, furniture, jewellery and antiques. The moveable estate is distinguished from the heritable estate which covers land and property.

Under Legal Rights, the spouse or civil partner inherits one-third of the moveable estate if there are surviving children or their descendants and one-half if there are none. Any children, or their descendants if they have died, are entitled to an equal share of one-third of the moveable estate if there is surviving spouse or civil partner. If there is not, children will inherit an equal share of one-half of the moveable estate. The principle of representation applies when a child of the deceased has died and their children are entitled to inherit what would have been their share. Adopted children have the same rights as natural children.

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