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Fergusson Law shares their latest news, the latest legal news and provides some legal advice on this blog.

Intestacy For Buy To Let Investors

buy to let properties and intestacy

Do you have a Will? If you die without one, your estate may not be distributed in the way you would have intended, and it might cause real problems for your family. The issue is of particular concern to buy-to-let investors, who own flats and houses in addition to their family home.

If you do not have a Will in Scotland, your estate is divided according to the rules of intestacy.

Firstly, if there is a surviving spouse they get PRIOR RIGHTS.

  • The family home (if they live there) up to a value of £473,000
  • Contents (if they live there) up to a value of £29,000
  • Cash - £50,000 if there are children, £89,000 if there are none.

If there are moveable assets left after prior rights, LEGAL RIGHTS apply

These only apply to moveable assets – that is everything except houses, flats and land.

  • Surviving spouse and children: spouse gets 1/3rd of moveable assets, children between them share 1/3rd of moveable assets. Final 1/3  of moveable assets goes into FREE ESTATE
  • Surviving spouse only: s/he receives half net moveable assets.  The other half to FREE ESTATE
  • Surviving children only: they share half net moveable assets. The other half to FREE ESTATE

everything left over after Prior and Legal Rights falls into the  FREE ESTATE

Therefore any other houses and land you own (including your buy-to-let properties), and all the cash etc. left from Rights will be distributed in the following strict order of succession:

Buy to let properties

  • Your children come first
  • If you have parents and siblings they share your free estate
  • If you only have parents, they take your free estate
  • If you have siblings, but no parents, they inherit (or their children if they have predeceased)
  • If you have no children, parents or siblings your surviving spouse comes next

It then goes on to uncles/aunts and other more distant relatives.  But the important point is that your wife or husband is very low on the list.  Your nieces and nephews may have better rights to your free estate than your surviving spouse.  If no-one can be found then the Government gets it.

If you are a buy to let investor with no Will your properties are likely to end up in your free estate.  If you have children, they will inherit these properties in preference to your surviving spouse, even if they are very young at the time.  This could result in an unnecessary inheritance tax bill and make the properties difficult to manage as young children do not have legal capacity.  If you are married with no children, your parents, brothers and sisters, (or their children if they have died before you) will inherit your buy to let properties in preference to your husband or wife. If you have an unmarried partner, they have limited rights, which do not include the buy-to-let properties.

If that is not what you want the practical solution is to draw up a Will.

For further help and legal advice about this matter please do not hesitate to get in touch with one of the Solicitors at Fergusson Law.


A recent ruling in the Court of Appeal in England and Wales highlights that although you can leave your money to whom you like there are some limitations, wherever you live in the UK.

England, Scotland and Wales, like the United States, have a tradition of "testamentary freedom" - the idea being that you can, in theory, leave your wealth to whoever you like.

Countries like France, Spain and the Republic of Ireland, by contrast, have fixed heirship shares.

However in Scotland, children and spouses may have "legal rights" to a portion of the deceased's estate.

A surviving spouse, or civil partner and children are entitled to part of the deceased person's moveable estate. In Scots law, heritable property means land and buildings, while moveable estate includes such things as money, shares, cars, furniture and jewellery.

The surviving spouse or civil partner is entitled to one-third of the deceased's moveable estate if the deceased left children or descendants of children, or to one-half of it if the deceased left no such children or descendants.

In England and Wales the Inheritance Act of 1975 section 2 sets out that close relatives may apply to a court for a variation to a will ‘such as to make reasonable financial provision for the applicant’.

The bar is set high in that an applicant must show real need or that they were led to believe that they were to receive an inheritance and acted on that belief.

One dispute currently going through the High Court involves Clive Shaw, 55, a dairy farmer who reportedly does not like cows, He is making a claim for the family farm after a disagreement with   his   parents who have written him out of their wills.   

It is the latest in a series of similar legal claims made this year. Lucy Habberfield brought a claim in the High Court in January 2018 against her mother. After the death of her father, her mother became the sole owner of the family farm   despite repeated promises over the years that Ms Habberfield   would inherit.   She had devoted much of her life to the farm working long hours for little pay. She was awarded £1.2m  to set up her own farm.

professionally drawn up Will covers all these eventualities and you must show that the needs of your close family were considered fully.

For advice in this matter please get in touch.


Fergusson Law has raised over £1,800 for charity this year after taking part in a will-writing campaign which asks solicitors to write wills for local people and instead of paying a fee, asks only for a voluntary donation. 

Fergusson Law has taken part in the annual Will Aid scheme and raised £1,870 in the month-long fundraiser.   

Janice Nisbet, from the firm, commented: “Our team have been delighted to take part in Will Aid and have worked very hard.  We were able to encourage lots of local people to have their wills written, which too many people put off until it is too late and at the same time supporting 9 well-loved charities.  We are happy to donate our time towards Will Aid. It is a great way of generating a link with the community. We would recommend that other law firms get involved."

Stephen Gillies from the British Red Cross paid the firm a visit to present them with a certificate.  He said: “We are very grateful to Fergusson Law and the Will Aid scheme for this generous contribution. The Red Cross uses donations to reach people in crisis, here in the UK and all around the world.”

Will Aid, which is celebrating its 30th year since launching, is a charity will-writing scheme that raises money for 9 wonderful charities: ActionAid, British Red Cross, Christian Aid, NSPCC, Save The Children, Sightsavers, Age UK, SCIAF (Scotland) and Trocaire (Northern Ireland). 

 “I would like to offer my heartfelt thanks to Fergusson Law and let them know that thanks to them, lives will change for the better and people who need it will continue to receive the help and support that the charities work so hard to provide.”