In Scotland, a surviving spouse, civil partner and any children of a deceased each have an automatic entitlement to claim a share of a deceased’s estate regardless of whether the deceased died leaving a Will or not. This entitlement is known as “Legal Rights”.
When can I claim legal rights?
1. Where a Will has been made and the testator has left nothing to their surviving spouse, civil partner, or children in their Will
2. Where a Will has been made but the value of any legacy to a spouse, civil partner, or children is less than the value of the legal rights to which they are entitled
3. Where a person has died without making a Will and there is moveable estate remaining after the prior rights to which a surviving spouse or civil partner is entitled are paid.
Heritable property means land and buildings, while moveable property includes such things as money, shares, cars, furniture and jewellery. At present, it is only on moveable estate that a legal rights claim can be made.
A surviving spouse or civil partner is entitled to one-third of a 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 they not died before their parent, their descendants may claim their parent’s share.
If a bequest is made in a Will to a spouse, civil partner or child, then that spouse, civil partner or child can only claim either the bequest or the legal rights but not both.
It pays to think about your future, prepare a Will, and discuss this with your family, so that complications do not arise when you are no longer here, and your family are facing stress and uncertainty. If you would like to prepare a Will or have any queries regarding a Will please get in touch.