Intestate Succession under Scots law

When someone dies without a valid will in Scotland, strict legal rules decide who inherits their estate.

For clear advice on intestate succession and to protect your family, call us on 01738 310 047 or complete our online contact form today to speak to a solicitor.

What is Intestate Succession in Scotland?

Intestate succession is the legal process that applies when a person dies without a will, or where their will does not fully deal with their estate. Scots law sets out a fixed order of who can inherit and what they are entitled to.

Key points about intestacy in Scotland:

• The estate is divided according to statute, not personal wishes.
• Certain relatives have priority and specific rights.
• Unmarried partners and step children have limited or no automatic entitlement.

Eden Legal’s solicitors can explain how the rules apply in your particular situation and what steps to take next.

How an Intestate Estate is dealt with

When there is no will, the estate must still be administered, debts paid and assets transferred to the correct heirs. The process follows a structured order set by Scots law.

Broadly, the typical stages are as follows:

1. Identifying the executor

If there is no named executor, the court can appoint an executor dative, often a close family member or a professional such as a solicitor.

2. Arranging a Bond of Caution

3. Establishing the estate

The executor gathers details of the deceased’s assets and debts, including property, savings, investments and liabilities.

4. Applying fo Confirmation in the estate

5. Paying debts and expenses

Funeral costs, taxes and other debts are settled from the estate before any distribution to beneficiaries.

6. Applying the intestacy rules

The executor calculates and pays any prior rights, legal rights and any remaining “free estate” in line with the statutory order.

7. Transferring assets to beneficiaries

Property, funds and other items are transferred or sold and the proceeds distributed to those entitled.

Eden Legal can act as, or advise, the executor and manage each stage efficiently and sensitively.

A Step by step Guide to Intestate Succession

This guide gives an overview of how intestate succession typically works under Scots law.

Step 1: Confirm there is no valid will

Check for any will or codicil among the deceased’s papers or with their solicitor or bank. If there is no valid will, or the will does not cover all assets, intestacy rules apply to the remaining estate.

Step 2: Identify the executor

Where no executor is named, someone must apply to the Sheriff Court for appointment as executor dative. There are set rules on who can apply to be executor dative and the court application can only be made by the rightful person or persons who are entitled to the estate. A solicitor can guide you through the application and any bond of caution required.

Step 3: Prepare an inventory of assets and debts

The executor lists assets and liabilities, including property, bank accounts, investments, valuables and outstanding debts. This is needed for tax, confirmation and distribution.

Step 4: Arrange a Bond of Caution

In most intestate cases an insurance policy known as a bond of caution is required before the executor can obtain confirmation to the estate. The insurance company will need a note of everyone who is legally entitled to benefit from the estate. The executor may need to instruct a genealogist to prepare a family tree in complex cases.

Step 4: Apply for confirmation

The executor usually applies to the Sheriff Court for confirmation, which authorises them to access and distribute the estate assets.

Step 5: Pay debts, funeral and tax

Estate funds are used to pay funeral expenses, debts and any inheritance tax or other taxes before beneficiaries receive anything.

Step 6: Calculate and pay prior and legal rights

If there is a surviving spouse, civil partner or children, the executor (or their solicitor) works out their prior and legal rights and pays these first, keeping clear records of any claims or discharges.

Step 7: Distribute any free estate

Any remaining assets form the “free estate”, which is shared among relatives in a strict statutory order. Legal advice is valuable where there are complex families or many potential heirs.

Step 8: Final accounts and closure

The executor (or their solicitor) prepares estate accounts showing all funds and assets received and paid out. Once beneficiaries agree the figures and all distributions are made, the estate can be closed.

How Eden Legal can help

Eden Legal is based in Perth, and we advise families across Scotland on intestate estates, succession rights and executry administration. Our team offers clear legal guidance combined with practical support at each stage, for example:

• Explaining how intestacy rules apply to your family and estate.
• Preparing the application to the Court for the appointment of an Executor Dative.
• Assisting the Executor in applying for confirmation and arranging a Bond of Caution.
• Calculating prior rights, legal rights and shares of the free estate.
• Ingathering assets and distributing estate to the beneficiaries