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.
You can exclude a child from a Will in Scotland, but that does not mean the child cannot share in their parent's estate. Just because a parent does not gift something to a child in a Will does not mean the child is not entitled to a share in the estate. In Scotland, children have an automatic entitlement to share in their parent's estate. These are called Legal Rights.
When someone dies, and they have children, the children are entitled to Legal Rights. They do not have to ask for them or take any action to enforce them. An executor winding up an estate must take account of any Legal Rights. This is especially important where there are young children.
However, it is not quite as straightforward as it sounds. Any surviving spouse or civil partner is also entitled to Legal Rights. However, a cohabiting partner who is neither married nor in a civil partnership with the deceased has no automatic entitlement to share in the estate.
We also need to consider whether there is a Will.
If there is no Will and the deceased is survived by a spouse or civil partner, the spouse or civil partner is entitled to Prior Rights to the estate. These currently consist of the following:
After Prior Rights have been exhausted, the surviving spouse and any children of the deceased have Legal Rights. In that case, the surviving spouse would be entitled to one third of the moveable estate, and the children would be entitled to one third of the moveable estate amongst them. However, if the Prior Rights exhaust the estate, nothing will be left available for Legal Rights.
Where there is a Will, Prior Rights are not available to the spouse or civil partner of the deceased. In this case, children will be entitled to a one third share in the moveable estate if there is a surviving spouse or civil partner or one half of the estate if there is no spouse or civil partner. A surviving spouse or civil partner will also be entitled to Legal Rights equal to a one third share in the moveable estate if the deceased had children or one half of the estate if there are no children.
If a child/spouse/civil partner is gifted something in the Will but decides to claim Legal Rights, they then lose whatever it is they had been left in the Will – they cannot have both.
It is also very important to note that Legal Rights relate to moveable property only. That means there is no entitlement to heritable property (which is generally made up of land and buildings).
The reason you cannot disinherit a child in if you are domiciled in Scotland is because Scots Law ensures children are protected from disinheritance. That means if you die owning moveable assets, your children have an automatic entitlement to share in your estate to the extent of their Legal Rights whether you like it or not.
Dealing with your estate when there are difficult or broken family relationships can be problematic. If you would like advice on how you can try to avoid or mitigate the impact of Legal Rights on your estate you will need to take expert legal advice.
Murray Beith Murray Partner, Andrew Paterson, specialises in succession and estate planning and is an expert in Will writing. 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 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.
