The Scottish Government published its response to a 2019 consultation on reforming intestacy rules this week. You can find the response here, and a helpful summary of the intestacy rules as they currently stand here.

What did it find?

The overwhelming majority of the respondents agreed that intestacy rules should be reformed. However, there was no consensus on what those reforms should look like. Neither of the alternative approaches discussed in the consultation – the regimes operating in British Columbia, Canada and Washington State, USA – found favour with respondents, with more than half supporting neither approach.

There was majority agreement on some issues, including closing of the loophole which allows an 'unworthy heir' (who is prohibited from inheriting due to having been responsible for a death) to act as executor. On this, and the limited other issues where there was consensus, the Scottish Government has said it will legislate at the next opportunity.

What next?

The Scottish Government has said that it remains committed to legislating to ensure that when a person dies with no will and no children, their spouse or civil partner should take the whole estate. That would create a position which many people incorrectly believe to be true already.

For everything else, further research and analysis will inform a decision about whether to refer the issue of intestacy reform to the Scottish Law Commission. In other words, watch this space.

So what is certain?

In the meantime there is a clear message to take away – having a will is the only way to ensure your estate is passed on after your death in accordance with your wishes. If you want to discuss putting in place a will, or any other personal legal matters, then please get in touch with your usual Brodies contact.


Stewart Gibson

Senior Associate