Legal Rights - Where the Deceased Has Left a Will

In Scotland, even if a Will is made, it is virtually impossible to disinherit a spouse or a child.

Legal rights can be claimed by

• A spouse – unless (if separated), a valid Separation Agreement has been put in place.
• Children – both adopted and illegitimate children (N.B. – stepchildren cannot claim).
• The issue of a child who has predeceased the person who has died.

Legal Rights can only be claimed against the net moveable estate, which is valued as at the date of death.  Moveable estate consists of anything which is not regarded as being heritable property, i.e. land and buildings.  This can include money held in bank/building society accounts, the value of stocks & shares, insurance policies, personal effects plus some other items which are not listed here.

Also included is a partnership in a business which means that, if the partnership owns heritable property, then that heritable property is treated as moveable for the purposes of inheritance.

Entitlements

If the deceased is survived by a spouse and children:-

• Spouse - one third of the net moveable estate
• Children or their issue – one third between them

If the deceased is survived only by children or their issue they are entitled to one half between them.

Expenses deducted

• Funeral expenses
• Debts due (excluding heritable debts i.e. mortgage)
• Costs incurred in obtaining valuation of the moveable estate
• Legal expenses in administration up to the point of obtaining Confirmation (the Scottish equivalent of Probate)

A beneficiary in a Will cannot claim both their legal rights and take their legacy. They have to make a choice.

If children are under the age of 16 they are deemed to be too young to either claim or discharge their legal rights, the executor/s should retain sufficient funds to meet a potential claim.

Any legal right claim reduces the nil rate band available on the first death which affects the amount carried forward and transferred on the second death.

The right to claim exists for 20 years.

To discuss any of the issues raised in this briefing, please contact Hazel Stewart.

Disclaimer: The information in this publication is based on our current understanding of the law. It has been produced for information purposes only. Professional advice should always be sought before taking any action.

Macleod & MacCallum cannot take any responsibility for loss incurred through acting or failing to act on the basis of anything contained in this publication.