Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
Murray Beith Murray LLP is a leading Scottish private client law firm.
For 175 years we have specialised in meeting the legal, financial and administrative needs of individuals and families, family trusts, charities and private companies.
The new Trusts and Succession (Scotland) Bill was introduced in the Scottish Parliament in November 2022 and proposed a number of reforms to Scottish Succession Law and the management of Trusts in Scotland.
The new Bill claims to clarify existing legislation on succession and special destinations in an attempt modernise the order of inheritance to reflect the changing views of families in Scotland.
Looking firstly at the changes to the order of intestate succession, the Bill proposes changes to the list of priority when inheriting in circumstances where a person dies intestate. Currently if someone dies without a will in Scotland, then any surviving spouses and children are entitled to a specific share in the estate, with the remainder of the property then being distributed to any surviving children and grandchildren, parents, siblings and then spouses in that order of priority.
The Bill proposes to change the order of priority so that spouses are next to inherit after children and grandchildren. This change will mean that when someone dies without a will and no children, the entire estate would be inherited by a surviving spouse or civil partner, which likely reflects what many people assume would happen.
Turning now to the treatment of joint property on death, the new Bill also seeks to clarify the rules around special destinations for divorced couples.
A special destination allows an automatic transfer of ownership to a surviving owner of joint property in the event that one of the joint owners dies. A special destination overrides the terms of a Will. At the moment, this means where joint owners of property were married or in a civil partnership but subsequently terminated their relationship prior to the death of one of the couple, ownership will automatically transfer to the surviving person irrespective of the subsequent relationship breakdown of the terms of the deceased’s Will.
The new Bill proposes to stop this automatic transfer in circumstances where the joint owners were married or in a civil partnership but then later divorced, meaning the property would not be automatically inherited by the ex-partner.
If one of the joint owners wishes for the property to be transferred to the ex-partner, the deceased would have to make it clear they intend the transfer to take place even in the event the relationship has ended. That could be done in a Will.
This change means that where there is no explicit wish of the deceased to transfer the interest in the property to an ex-spouse or civil partner, the deceased’s interest in the property will instead be included in their estate and distributed accordingly.
Alongside changes to Succession law, the Bill has also proposed a number of changes to the administration and management of trusts. The Bill aims to modernise existing trust legislation in Scotland, with the current main legislation, the Trusts (Scotland) Act 1921, now being over 100 years old. In particular, the Bill seeks to clarify the role of trustees and their duty of care towards beneficiaries of a trust, as well as the role of the court when representing beneficiaries under the age of 18.
The changes put forward in the Bill demonstrates the government’s desire to modernise legislation and reflect contemporary families in the order of succession. Although a step in the right direction, Scottish Succession Law could still benefit from further modernisation, particularly in areas such as the entitlement of cohabitants in succession.
Murray Beith Murray Partner, Andrew Paterson, specialises in trusts, estate planning and asset protection. If this blog has raised any questions or you have a matter to discuss please get in touch using the enquiry form or call on 0131 225 1200.
Murray Beith Murray was established in 1849, as advisors for generations of clients, committed to our values of integrity, expertise and trust. This aim and these values continue to this day as does our commitment to be here when you need us.
