In Scotland, there’s been a long-held legal principle that you can’t disinherit your children. What this means in very simple terms is that whether or not you’ve made a Will, your children have Legal Rights to your estate. Legal Rights in Scotland are an automatic entitlement are enjoyed by the surviving spouse, civil partner and any children. The term “children” includes any adopted and illegitimate children. This usually comes as a surprise to those making a Will!
Children don’t have to take any action or to apply to the courts to have Legal Rights bestowed on them. Legal Rights are automatic and they involve a share in the moveable estate of their parent (cash, shares, cars, jewellery etc.) but not in any heritable (land and buildings) estate.
Setting down what Legal Rights are and who is entitled to what is quite a complicated affair and we need to look at the position for those who make a Will and those who don’t. You also need to be aware that any spouse or civil partner has Legal Rights too, so we have to consider these when looking at the Legal Rights of children
Where there’s a Will
Let’s look, first of all, at the position when someone with children makes a Will.
When you’re making your Will, you should always remember that:
- if you have no children –
your spouse or civil partner is entitled to one half of your moveable estate, or,
- if you have children but your spouse or civil partner has predeceased you –
your children are entitled to one half of your moveable estate, or
- if you do have children and also leave a spouse or civil partner –
your spouse or civil partner is entitled to one third of your moveable estate and your child or children is or are entitled to one third of your moveable estate.
Remember that this relates to the automatic rights to your moveable estateand not your heritable estate.
It is very important to note that when one of the above categories of beneficiary makes a claim for Legal Rights, they forego any provision made for them in the Will – they cannot seek to have both benefits.
Where there is no Will
This does become quite complicated. The reason for this is that when someone dies intestate – that means without a Will – that person’s spouse or civil partner is entitled to something called Prior Rights. As the name suggests, Prior Rights take precedence over Legal Rights. Prior Rights mean the surviving spouse or civil partner receives:
- the family home up to a certain value (currently £473,000)
- the furniture in that home up to a certain value (currently £29,000), and
- a cash sum of money, again, up to a certain value (currently £50,000 if there are children, £89,000 of there are no children).
If the value of the estate is within the current limits for Prior Rights, then the entire estate will be exhausted by these and there will be nothing left for Legal Rights.
After the Prior Rights have been satisfied, if there is any moveable estate left, the following Legal Rights will apply:
- The spouse or civil partner is entitled to receive one third of the remaining estate,
- Any child is or children are entitled to receive one third of the remaining estate divided equally amongst them
That still leaves the remainder of the estate to be paid over to someone and, in this example, where there is a surviving spouse or civil partner, the child or children are entitled to receive the remainder of the estate – and it doesn’t matter if it’s made up of heritable or moveable property!
If any child has died before their parent and that child had children, those children are entitled to their parent’s share in their grandparent’s estate equally between or amongst them.
Finally, If there is no spouse or civil partner, the entire estate goes to any child or if there’s more than one child, equally amongst the children.
Want to find out more?
We hope this article has given you some understanding about the complex nature of this area of law. Solicitors need to take Prior and Legal Rights into account when advising clients on preparing their Wills or in winding up an Estate in an Executry Case. This is only a very brief overview of the law as it currently stands. For specific guidance on your own situation, please get in touch using the details at the bottom of this page.