When someone dies in Scotland, certain family members are automatically entitled to claim a share of the estate. These are known as Legal Rights. They apply regardless of whether the deceased made a Will and can have a significant impact on how an estate is divided. Understanding how Legal Rights interact with Prior Rights and other succession rules is essential when planning your estate or dealing with the death of a loved one.
What are Legal Rights?
In Scotland, Legal Rights are a long-established form of inheritance protection. They apply when the deceased was domiciled in Scotland and ensure that a surviving spouse, civil partner, or children can claim a share of the moveable estate. Moveable estate includes everything except land and buildings, such as money, investments, and personal possessions.
The rules are as follows:
- A surviving spouse or civil partner can claim half of the moveable estate if there are no children, or one third if there are.
- Surviving children are collectively entitled to half of the moveable estate if there is no spouse or civil partner, or one third if there is.
These entitlements arise automatically and are treated as debts against the estate. They take precedence over any legacies left in a Will.
The Relationship Between Prior Rights and Legal Rights
If someone dies without leaving a Will, their spouse or civil partner has Prior Rights before Legal Rights are considered. Prior Rights include entitlement to:
- The family home (up to £473,000 in value)
- Household contents (up to £29,000)
- A cash sum of £89,000 if there are no children, or £50,000 if there are.
If Prior Rights exhaust the estate, there may be nothing left to satisfy Legal Rights.
How Legal Rights Work in Practice
When an estate is wound up, the executor (or their solicitor) will identify who is entitled to claim Legal Rights. Those entitled will usually receive a written notice explaining their potential entitlement and may be asked whether they wish to claim or discharge it. It is common for children to discharge their claim in favour of a surviving parent, but this must always be considered on a case-by-case basis.
What Happens to the Rest of the Estate?
After Legal Rights are settled, the remainder of the estate is distributed according to the Will or, in the absence of one, according to the rules of intestacy. These rules specify who inherits and in what order, based on which family members survive the deceased.
It is important to note that beneficiaries cannot “double up”. Someone entitled to Legal Rights must choose between claiming them or accepting their inheritance under the Will.
Why Legal Advice Matters
Legal Rights and their interaction with Prior Rights and intestacy rules can be intricate, particularly when families are blended, assets are divided across various categories, or substantial sums are involved. Seeking legal advice ensures that your estate planning accurately reflects your wishes and that executors and beneficiaries are clear about their rights and responsibilities.
How maloco mowat parker can help
At maloco mowat parker, we advise families across Fife and beyond on all aspects of succession, Wills, and estate planning. Whether you are making a Will or dealing with the estate of a loved one, our experienced solicitors can guide you through the process with clear, practical advice. Contact us today to arrange an appointment.