When you die in Scotland, you should not assume your estate will be distributed amongst your loved ones in the way you think it will. That’s because when you die intestate (that is without a Will), your estate will be distributed in accordance with the Law of Succession.

The Succession (Scotland) Act 1964 and various subsequent legislation sets out who should inherit your intestate estate and set limits on the extent of that inheritance. Your spouse or civil partner is entitled to Prior Rights and Legal Rights. Your children are entitled to Legal Rights.

What are Prior Rights?

Prior Rights are automatic rights enjoyed by your spouse or civil partner to share in certain aspects of your estate. These rights take precedence over any other rights to share in your intestate estate. Your surviving spouse or civil partner is entitled to:

• • The family home (up to a value of £473,000);
    
    
  • The furniture and contents of the family home (up to a value of £29,000);
    
    
  • If there are no children the first £89,000 of the remainder of the estate. If there are children, that is reduced to £50,000.

Importantly, if you are cohabiting with a partner but are not married or in a civil partnership with them, your surviving partner has no automatic rights to share in your estate.

If the Prior Rights use up the entire estate, there will be nothing available for Legal Rights.

What are Legal Rights?

Legal Rights are automatic rights which entitle the surviving spouse or civil partner and the children of the deceased to share in the “moveable” estate of the deceased. Moveable estate is generally any estate which does not comprise land and buildings.

The share in the moveable estate depends on whether there is a surviving spouse or civil partner and whether there are children.

• • Where there are children, the surviving spouse or civil partner is entitled to one third of the moveable estate. Where there are no children, the surviving spouse or civil partner is entitled to one half of the movable estate;
    
    
  • Where there is a surviving spouse or civil partner, the children are entitled to one third of the moveable estate. Where there is no surviving spouse or civil partner, the children are entitled to one half of the moveable estate.

In the case of children, the Legal Rights share they are entitled to must be shared equally amongst them.

What happens to the remainder of the estate?

As you will have noticed, once Legal Rights have been satisfied, there may be estate left over. For example, if the deceased owned heritable property (generally land and buildings) in addition to the family home, it would not be included in the Legal Rights share because it is not moveable property.

If the deceased had children, after satisfaction of Prior Rights and Legal Rights, the children would be entitled to the remainder of the estate whether heritable or moveable. The surviving spouse receives nothing more than Prior Rights and Legal Rights. This, perhaps, is not quite what you thought might happen!

However, if you have no children, since 30 April 2024, your spouse or civil partner will inherit the remainder of your estate in addition to their Prior and Legal Rights.

Can Legal Rights for children be avoided?

Sometimes, family life can be challenging, especially in blended families. On occasions, there are rifts between parent and child. In such instances, whilst there may be a desire to disinherit your children, their entitlement is enshrined in law. If you do not make a Will, your children might well stand to inherit a significant share of your estate, especially if that estate substantially exceeds the Prior Rights of your spouse or civil partner.

Whilst it is possible to prevent children having access to the remainder of your estate by making a Will, they are still entitled to their Legal Rights in your moveable estate even if you have a valid Will. Each individual’s requirements are different so you must speak to your solicitor for advice appropriate to your circumstances.

What happens with the Legal Rights of minor children?

Even if a child is a minor, you must take their Legal Rights into account. Their Legal Rights share should be retained until they reach adulthood and then they can decide whether to claim it or relinquish it.

Do these rights exist in other parts of the UK?

Legal Rights do not exist in any other jurisdiction in the UK. The other UK countries have their own laws of succession which must be referred to when someone dies who is domiciled (what they consider to be their permanent home) in that country.

Executry and Estate Planning Solicitors, Edinburgh

Winding up an estate in Scotland can be challenging. You must deal with all aspects of the estate diligently and take account of Prior and Legal Rights. A failure to deal properly with any one aspect of the estate can lead to delay and expense. It is important to instruct a solicitor with expertise in dealing with winding up estates. The position in England differs and Murray Beith Murray LLP have dual qualified lawyers who can advise on both jurisdictions.

Murray Beith Murray LLP Partner, Andrew Paterson, specialises in succession and estate planning and tax. Andrew also heads our Executry group and has assisted many families with the legal issues arising following the death of a relative.

If you would like to discuss any of the issues covered in this article, or if you require assistance with any other matter, please complete our contact form or call us on 0131 225 1200.

Murray Beith Murray LLP 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.