The “Age of Capacity” in Scotland
With regards to any inheritance, until your sixteenth birthday, you are classed as a minor and are unable to enter into legal contracts. For estate planning, this is most likely to impact property or other assets excluding money. If you were to leave your home to a minor, he/she would not be able to buy, sell or lease it.
If you are older than sixteen but have not yet celebrated your eighteenth birthday, you are able to enter into a contract, but this can be challenged by anybody in court. The court would be obliged to consider the challenge, but may ultimately disagree with it. This introduces an element of risk in a contract with someone who is under eighteen – which may be a consideration for the other party entering into the contract.
Once you have reached your eighteenth birthday, there are no age-related restrictions on what you can and cannot do with an inheritance.
Children aged eighteen and under
If your children are eighteen and under, we would recommend that any estate you leave to your children be held ‘in trust’ for them until they are at least sixteen. The most likely person to be the Trustee would be the person nominated as the guardian of your children. It could also be the Executor of your Will. Theoretically it could be any responsible person aged 18 or older, as long as they were willing to undertake the responsibility.
You would also be able to specify provisions for your nominated guardian to claim reasonable expenses associated with raising your children from your estate.
You can leave a sum of money to anybody regardless of their age – as long as the person you’re leaving the money to has a bank account where it can be transferred.
Education or Career Status
You may want to consider the impact an inheritance may have on the education or career path of your children. Receiving a reasonably large inheritance can be overwhelming and comes at a time when they are already emotionally vulnerable after losing a parent. You may want to prioritise your children developing their own sense of purpose in life before having access to their inheritance. In your Will you might specify the inheritance be kept in trust until your children leave full time education, but you may want to instruct the Trustee to release funds to support your children throughout the period of their education.
What if your children don’t agree with your assessment?
If you were to leave your entire estate to your children but specify everything is held in trust until they are, say, twenty five years old, they would be able to challenge this when they turned eighteen, regardless of what is written in your will.
In Scotland, your children are collectively entitled to claim a one third of your moveable estate under a legal rights claim. This generally means everything excluding property. If you leave your children less than this in your Will, they can claim their ‘legal rights’. However, they would also forfeit whatever you had specified in your will – they cannot have it both ways.
What age children should inherit in my will – conclusion
If you are writing a will when your children are very young, it will be impossible for you to plan for every eventuality, but then, that’s just part of being a parent, whether you are there or not. Our solicitors have lots of experience in talking parents through different scenarios in order that they make considered decisions. Contact us today about writing or updating your will.