How long does an executor have to settle an estate in Scotland?
A realistic timeline, the six-month rule, tax deadlines and what beneficiaries can do about delays.
Read the guideThe short answer
If someone dies without a will in Scotland, their estate is intestate and the Succession (Scotland) Act 1964 decides who inherits. A surviving spouse or civil partner is entitled to prior rights first, then legal rights. The children share legal rights and the rest of the estate. If there is no spouse or children, the estate passes to other relatives in a fixed order. An unmarried partner has no automatic right to inherit. Someone also has to apply to the sheriff court to be appointed as executor.
Many people put off making a will, and many never get round to it. So what happens if you die without a will in Scotland? If a person dies without one, it does not mean the government takes everything, and it does not mean the family can simply decide between themselves. Under Scots law, the rules of intestacy set out exactly who is entitled to what. The rules are different from those in England and Wales, so it is worth understanding how they work in Scotland.
What does it mean to die intestate under Scots law?
A person dies intestate when they leave no valid will. If they leave a will that only deals with part of their estate, the rest is treated as intestate, which is called partial intestacy. In either case, the intestacy rules in the Succession (Scotland) Act 1964, which sets out the rules for the estates of deceased persons in Scotland, decide how the intestate estate is shared out. Scotland's succession law continues to develop, and the Trusts and Succession (Scotland) Act 2024 has already updated parts of it, so it is worth taking advice on the specific circumstances of each estate.
The rules apply to everything the deceased owned in their sole name at the date of death, after their debts, funeral costs and any inheritance tax have been paid. Scots law splits an estate into heritable property, which means land and buildings such as a house, and moveable estate, which means everything else, including money in bank accounts, shares, cars and personal belongings. The difference matters, because some rights only apply to the moveable estate, so the value of the estate in each category affects who receives what.
Who can administer an intestate estate?
When there is a will, it normally names the executors. When there is no will, someone has to apply to the sheriff court to be appointed as executor-dative. This is usually the surviving spouse or civil partner, or the closest relative who is entitled to inherit as a beneficiary. The application is made by a petition to the sheriff court, which is published so that anyone with an objection can come forward.
Once appointed, an executor-dative usually has to obtain a bond of caution before Confirmation is granted. This is a type of insurance that protects the estate and the people entitled to it if the executor makes a mistake. It is not needed in every case. For example, a surviving spouse or civil partner whose prior rights use up the whole estate does not need one, and neither does the executor of a small estate where the sheriff clerk prepares the forms. Our guide on how to become an executor if there is no will walks through the petition step by step.
Do you still need Confirmation if there is no will?
Yes. Confirmation is the Scottish equivalent of probate, and banks, pension providers and other organisations will normally need to see it before they release the deceased's assets, whether or not there is a will. For a small estate worth £36,000 or less, there is a simpler procedure and the sheriff clerk can help. Some banks will also release small balances without Confirmation, at their discretion.
The rules of intestacy: who inherits in Scotland?
The estate is shared out in three stages, always in this order. First come the prior rights of a surviving spouse or civil partner. Next come legal rights. Whatever is left, known as the free estate, then passes to relatives in a fixed order.
Stage 1: Prior rights of a surviving spouse or civil partner
If the deceased was married or in a civil partnership when they died, the surviving spouse or civil partner is entitled to prior rights. These apply to deaths since 1 February 2012.
| Prior right | What it covers | Maximum value |
|---|---|---|
| The family home | The deceased's interest in the home the spouse or civil partner was living in, after deducting any mortgage or other heritable debt secured on it. If it is worth more, the spouse receives the maximum as a cash sum instead. | £473,000 |
| Furniture and contents | The furniture and household contents of that home. | £29,000 |
| Cash sum, with children | A financial provision taken from the rest of the estate if the deceased had children. | £50,000 |
| Cash sum, no children | A financial provision taken from the rest of the estate if the deceased had no children. | £89,000 |
In many smaller estates, prior rights use up everything, so the surviving spouse or civil partner is entitled to receive the whole estate.
Stage 2: Legal rights claims
Legal rights can only be claimed from the moveable estate that is left after prior rights. The shares depend on who survives.
| Who survives | Spouse or civil partner | Children, shared equally |
|---|---|---|
| Spouse or civil partner and children | One third of the moveable estate | One third of the moveable estate |
| Spouse or civil partner, no children | One half of the moveable estate | Not applicable |
| Children, no spouse or civil partner | Not applicable | One half of the moveable estate |
If a child has already died, their own children can usually take their share in their place. Anyone entitled to claim legal rights should get advice before accepting a payment, because a legal rights claim can affect the rest of the estate administration. Our guide to legal rights and disinheriting a child explains how they work when there is a will.
Stage 3: The rest of the estate
Whatever is left after prior rights and legal rights passes to the surviving relatives in this order. Each group only inherits if there is nobody in the group above it.
- Children, shared equally, with grandchildren taking the share of a child who has died.
- Parents and brothers and sisters, with half going to the parents and half to the brothers and sisters.
- Brothers and sisters, if there are no surviving parents.
- Parents, if there are no brothers or sisters.
- The surviving spouse or civil partner.
- Uncles and aunts, then grandparents, then great uncles and great aunts, then more distant relatives.
This order surprises many people. A husband, wife or civil partner comes after the deceased's parents and brothers and sisters for the free estate, although by that point they will usually already have received a large share through prior rights and legal rights. Our guide to what a husband, wife or civil partner inherits has worked examples, and our guide on dying with no relatives explains what happens when nobody is entitled.
Worked examples
These simplified examples ignore debts, funeral costs and tax, and assume the home had no mortgage.
Example 1: married, with two children
The estate is a home worth £250,000, contents worth £10,000 and £110,000 in bank accounts. The spouse takes the home, the contents and £50,000 in prior rights, leaving £60,000. Legal rights then give the spouse one third (£20,000) and the children one third (£20,000). The last third (£20,000) is free estate, which goes to the children. The spouse receives £330,000 and each child receives £20,000.
Example 2: married, no children, parents and a brother still alive
The estate is a home worth £200,000, contents worth £5,000 and £150,000 in savings. The spouse takes the home, the contents and £89,000 in prior rights, leaving £61,000. Legal rights give the spouse half (£30,500). The free estate of £30,500 is then split, with half to the parents and half to the brother. The spouse receives £324,500, the parents share £15,250 and the brother receives £15,250.
Example 3: living with a partner, not married, no children
The deceased lived with their partner for 15 years and has one sister. Because the couple were unmarried, the partner has no prior rights or legal rights. The whole estate passes to the sister, unless the partner applies to the court for a share in time.
What about unmarried partners and cohabitants in Scotland?
Being next of kin does not by itself give anyone a right to the estate, as our guide on who is next of kin in Scotland explains. Unmarried partners do not inherit automatically under the rules of intestacy, however long they lived together. Instead, a surviving cohabitant can apply to the sheriff court under the Family Law (Scotland) Act 2006 for a share of the estate. The court decides whether to award anything and how much, taking into account the length of the relationship and the couple's financial circumstances. The claim must be made within six months of the date of death, so a cohabitant should get legal advice as soon as possible. Our guide on what an unmarried partner can claim explains how these claims work. If the family agrees, the people who inherit can also pass part of the estate to the partner using a deed of variation. Before treating an estate as intestate, make sure you have searched properly for a will. These claims can be time-consuming, and a dispute with the deceased's family is common, which is another reason to act quickly.
Stepchildren, adopted children and divorce
- Adopted children inherit from their adoptive parents in the same way as birth children.
- Children born outside marriage have exactly the same rights as other children.
- Stepchildren do not inherit under the intestacy rules unless they were legally adopted.
- A former spouse has no rights once a divorce is final, but a spouse who is separated and not yet divorced keeps their full entitlement.
What happens to children if a parent dies without a will, and why appoint guardians?
A will lets parents appoint guardians to look after their children if they die. Without a will, a surviving parent with parental rights usually continues to care for the children. If there is no surviving parent, someone may have to apply to the court to be appointed as guardian, which can add worry at an already difficult time.
Children can still inherit under the intestacy rules. In Scotland, young people have full legal capacity from 16, so money inherited by a younger child is usually managed on their behalf until then.
What happens if there are no surviving relatives?
It is rare for nobody at all to be entitled. If no relatives can be found, the estate is dealt with by the National Ultimus Haeres Unit and passes to the Crown through the King's and Lord Treasurer's Remembrancer. Relatives who come forward later and can prove their relationship may still be able to make a claim.
How to avoid intestacy: make a will and update it after life changes
The simplest way to make sure your estate goes to the people you choose, and to safeguard the people you care about, is to make a will. It lets you decide how to dispose of your estate rather than leaving the law to decide. A will lets you provide for an unmarried partner or stepchildren, appoint guardians for your children, choose your executors and avoid the cost and delay of a court petition. It also brings real peace of mind to the people you leave behind.
A valid Scottish will must meet certain legal requirements, including being signed by you and witnessed. It is also advisable to review your will after major life changes. In Scotland, getting married does not cancel an existing will, so an old will may no longer reflect your wishes. Many people do not recognise this until it is too late, and their estate is then shared out in a way they never intended. Our private client team can help with wills and estate planning as well as winding up an estate.
If someone close to you has died without a will, our executry solicitors in Glasgow, East Kilbride, Paisley and Renfrew can explain who is entitled to inherit, handle the court petition and administer the estate for you. You can also read how long it takes to settle an estate in Scotland.
Frequently asked questions
What happens to my dad's money if he dies without a will?
It depends on who survives him. If he was married or in a civil partnership, his spouse or civil partner has prior rights first, then legal rights, and his children share legal rights and the rest of the estate. If he was not married, his children inherit everything, shared equally. If a child has already died, that child's own children usually take their share. Someone, usually a close relative, has to be appointed as executor-dative by the sheriff court before the money can be released.
Does a husband or wife automatically inherit everything if there is no will?
Not always. A surviving spouse or civil partner is well protected by prior rights, and in a smaller estate those rights may use up the whole estate. In a larger estate, the children or, if there are no children, the parents and brothers and sisters of the deceased can inherit a share as well.
Does jointly owned property pass automatically?
A house owned jointly with a survivorship destination in the title deeds passes automatically to the surviving owner and does not form part of the estate. Without that wording, the deceased's share of the house is part of their estate. Banks usually release a joint account to the surviving account holder, but under Scots law the money belongs to whoever paid it in, so it may still form part of the estate.
How long does it take to deal with an intestate estate?
Usually a little longer than an estate with a will, because someone has to petition the sheriff court to be appointed as executor-dative, and a bond of caution is usually needed, before Confirmation can be applied for. Many intestate estates take between nine and eighteen months to wind up.
Can I get legal aid to deal with an intestate estate?
We do not provide legal aid. Executry fees, including the cost of the court petition and any bond of caution, are normally paid from the estate itself.
Need help with an estate?
Our executry solicitors can take the whole process off your hands, or answer a single question. Your first appointment is free.
This guide is general information about Scots law, correct at the date shown. It is not legal advice for your circumstances.
