Next of Kin Inheritance

[Jennifer A]

John McLachlan died 23/10/1850 leaving no will
Who would have inhereted his estate his widow or his daughter.  the inventory of his creditors names his daughter as his next of kin although I believe his wife was still living in 1851 when the census was taken.

[Forfarian]

I believe that under Scots Law a widow is entitled to one third of her husband's estate and the children are entitled to one third. The remaining third is presumably open to negotiation. So the likely answer is that they shared the estate.

On the other hand if all you have is an inventory of his creditors, and no assets, maybe there was nothing for him to bequeath in the first place?

[fifer1947]

Scots Law is a minefield!    It depends on prior rights and legal rights currently the law states

"A. Where the deceased person did not leave a will (intestacy)

1. Prior Rights

After debts and other liabilities have been met, a widow, widower or a surviving civil partner has a certain " prior rights of a surviving spouse or civil partner" in the deceased person's estate, where no will has been left.

He or she is entitled to the dwelling house of the deceased in which the surviving spouse or civil partner was resident at the time of the deceased's death, plus up to the value of £24,000 any furnishings and furniture of that house. (In certain cases, e.g. where the house is a farmhouse or part of a shop, or where the house is worth more than £300,000 the entitlement is not to the house itself, but to its value up to £300,000.)

The surviving spouse or civil partner is also entitled to the first £42,000 out of the estate if the deceased left children or descendants of children or to the first £75,000 if the deceased left no children or descendants.

Prior rights are a first claim on the estate, before legal rights (see below).

2. Legal Rights

A surviving spouse or civil partner and children are entitled to certain "legal right" out of the deceased person's moveable estate. In Scots law, heritable property means land and buildings, while moveable property 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.

The children are collectively entitled to one-third of the deceased's moveable estate if the deceased left a spouse or civil partner, or to one-half of it if the deceased left no spouse or civil partner. Each child has an equal claim. Where a child would have had a claim had he (she) not died before his (her) parent, his (her) descendants may claim his (her) share by the principle known as representation."

[Forfarian]

Scots Law is a minefield!

Is there any law that isn't a minefield in some cases?

Thank you for the clarification, especially as in very over-simplified terms it agrees with what I thought was the case

[RJ_Paton]

In the 19th century the situation was slightly different. Property was divided into two main categories - Heritable (land  houses ) and Moveable (other possessions) as until about 1868 the rule of primogeniture still applied to heritable property and as regards what happened to the other possessions SP has this

Who got the "guids" and "geir" (the possessions)?

Very briefly:

The rules of moveable succession differed from those which applied to succession to heritable property principally in that there was no significance attached either to primogeniture (i.e. the inheritance going to the eldest son to the exclusion of all the other sons and daughters) or to the gender of the children of the deceased. With moveable succession, all children had equal rights.

When a man's property was being distributed it had to be divided into a maximum of three parts:
the widow's part - jus relictae
the bairns' part - legitim
the dead's part - deid's part

If he was survived by both wife and children his estate was divided into three, with one-third going to the widow, one-third being divided equally among the children or all going to an only child, while the remaining third could be disposed of in accordance with the wishes expressed by the deceased in his will or disposition. If the man had been pre-deceased by his wife the division was into two parts, with one half going to the children and the other to persons named by the deceased. If there was a widow but no children again the division was into two - one half to the widow and the dead's part going to other named individuals. Lastly, if the man had no surviving wife or children the whole of his moveable estate was designated as the dead's part, to be bequeathed by him as he pleased. This distribution could be affected by any special provisions already made in a marriage contract or in bond(s) of provision for children of the marriage.

http://www.scotlandspeople.gov.uk/Content/FAQs/Questions/index.aspx?380   has the full text