A child can be excluded from a Will in Scotland, but this does not prevent the child from receiving a share in their parent’s estate. Even if a parent does not bequeath something to their child in a Will, children in Scotland have an automatic right to inherit part of their parent’s estate. The rights children have to inherit a share in their parent’s estate are called Legal Rights.
What are Legal Rights?
When someone dies in Scotland but is survived by children, the children have an automatic entitlement to their Legal Rights in the estate. They do not have to request them or take any steps to enforce them. An executor winding up an estate must take cognisance of the Legal Rights of any children. This is especially important where there are young children.
However, it is not as simple as it sounds. This is because surviving spouses or civil partners are also entitled to Legal Rights. It is important to be aware that a cohabiting partner who wasn’t married to or in a civil partnership with the deceased does not have automatic inheritance rights.
What happens with Legal Rights is there is no Will?
A surviving spouse or civil partner is entitled Prior Rights in the deceased’s estate if there is no Will. Prior Rights take precedence over Legal Rights. Prior Rights are made up as follows:
- The family home (up to a certain amount – currently £473,000)
- The contents of the family home up to a specified value (currently £29,000)
- A share of moveable estate (up to a certain amount – £50,000 if there are children, £89,000 if there are no children)
Once the Prior Rights of the surviving spouse or civil partner have been exhausted, the surviving spouse or civil partner are also entitled to Legal Rights. If there are children, the surviving spouse or civil partner is entitled to one third of the moveable estate and the children are entitled to one third of the moveable estate equally amongst them. However, if the Prior Rights exhaust the entire estate, there would be nothing left for the Legal Rights.
What happens with Legal Rights where there is a Will?
A surviving spouse or civil partner cannot claim Prior Rights if the deceased has made a Will. In this case, children are entitled to receive one third of the moveable estate if there is a surviving spouse or civil partner or one half if there is no surviving spouse or civil partner.
A child who receives a bequest or legacy or a share of the residue of the estate has the option of accepting this or claiming Legal Rights. The child cannot have both!
It is also crucial to understand that Legal Rights only attach to movable property. It is important to understand that there is no right to heritable property (which is generally made up of land and buildings).
You cannot disinherit a child in Scotland
In Scots Law, children are protected from disinheritance, so if you are domiciled in Scotland, you cannot disinherit your children. Because of this, whether you like it or not, your children will have an automatic right to inherit a share of your movable estate after your death.
Dealing with an estate where there are family differences or in situations where there are children from earlier relationship can be challenging.
If you wish to discuss the impact of Legal Rights on your estate, please call Stacey Parker on 01383 629720 or email Stacey by clicking here.
