Inheritance Rights in Scotland
Legal Rights of Succession in Scottish Law
In Scotland there is a defined pathway by which an estate must pass whether a Will has been made or not. These are called Legal Rights and are intended to protect the immediate family of a deceased to help ensure wealth stays within the family. Spouse/Civil partners and children are included within Legal Rights – cohabiting partners are not.
Legal Rights apply to ‘Moveable’ estate – which is anything and everything except property. So belongings, cash, investments etc. Property, which is not moveable, is called ‘Heritable’ estate. If the deceased left a spouse/civil partner and children then the moveable estate is divided into thirds, one third to the spouse, one third to the children (or if they had predeceased it would travel down to their children) and the last third goes in “Free Estate” which is the next pot. If the deceased only had a spouse, or only had children then the Moveable estate would be divided in half and one half would go to them and the other to Free Estate.
These Legal Rights apply whether there is a Will or not. If there is no Will then Scottish law will apply Prior Rights before Legal Rights as Prior rights also cover property. So If you call Scotland home and don’t have a Will this is what would happen; your spouse would have claim of your property (up to £473,000) they would also have claim on your belongings up to £29,000 and cash assets up to £50,000. Any children then would share the rest equally. If there were no children then the cash asset amount increases to £89,000. After this stage, with no Will, then the remaining estate would go through Legal Rights, and anything left into Free Estate. If there is no spouse or children then the whole estate would pass straight through to Free Estate.
Free Estate is prioritised in the following order of relatives; Children, parent(s)/siblings, surviving spouses, uncles/aunts, grandparents etc. There is no mention of co-habiting partner, nieces/nephews, business partner.
By writing your Will you would avoid any of your estate passing through to Free Estate, but you can’t guarantee avoidance of Legal Rights. By setting out your wishes in your Will, that helps show your family that you have considered and made choices. This could be enough for them to give up their Legal Rights to allow your Will to stand. For example, if you are married, quite often couples want everything to go to the other spouse/civil partner on a first death basis, and then on the children upon 2nd death. But in Scotland the children could prevent this by claiming their Legal Rights. Potentially not leaving enough liquid asset for the remaining spouse to live on. Giving up a Legal Right is as simple as putting it in formal writing to the Executor of an estate, a Will helps make this process much easier.
Need more motivation o draft your Will north of the border?; in Scottish law, divorce has no impact on succession laws. So your ex-partner could inherit up to half of your estate even if you have been divorced for years!
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Thank you to Ben Hughes for the image of the Scottish Highlands taken from near the top of Ben Nevis during a rather long walk last summer.