You may be an executor of a Will or a beneficiary under somebody’s Will and you may have heard of the concept of legal rights but not been sure what they mean for you. Perhaps you want to consider making a Will without providing for your children. 

Whatever your circumstances you need to know what are legal rights in Scotland and that Scots law makes provision for them so that certain relatives cannot be disinherited.

Can a beneficiary under a Will make a legal rights claim in Scotland?

Beneficiaries under a Will have to decide whether to make a legal rights claim or to accept their entitlement under the Will. They cannot take both.

Claiming legal rights in Scotland as part of the winding up of an estate

The executor of a Will is obliged to seek out and make contact with anybody who is entitled to make a legal rights claim against an estate. It is part of the winding up process to make sure that legal rights are discharged or claimed. 

This important task will usually be dealt with by a solicitor acting on behalf of an executor but claiming legal rights in Scotland is open to those entitled for a period of 20 years. Discharging legal rights in Scotland is a formal procedure whereby potential claimants sign a discharge in respect of their rights.

Who are the potential claimants of legal rights?

The children, a wife, husband or civil partner may all seek to make a claim for legal rights. They are in the same position as creditors. 

If a couple have separated they may still submit a claim against the other party’s estate, but only until such time as a divorce, dissolution or separation agreement has been finalised. 

Legal rights of stepchildren in Scotland do not exist as those children who can claim legal rights are limited to the natural or adopted children of the deceased.

What rights do unmarried couples have in Scotland? 

Unmarried couples have no rights to make a claim against their partner’s estate in respect of legal rights but in some circumstances it will be open to them to make a claim for support by way of an application to the court.
People who live together with their partner should consider carefully the importance of making a Will.

Do grandchildren have inheritance rights and can estranged children still claim legal rights in Scotland?

If any of the deceased person’s children have died before they parent their own children, that is the deceased person’s grandchildren, are entitled to claim their parent’s legal rights share of the net moveable estate. Also, it is important to be clear that estranged children remain entitled to make a claim.

How much can be claimed and who can make a claim?

Legal rights can only be claimed against the moveable part of the deceased person’s estate, which is money in the bank, cars, personal belongings, investments, shares and such like. A house is not taken into account. There are certain exceptions and it is always prudent to consult a solicitor. Any outstanding debts, funeral costs, inheritance tax and legal fees due by the estate can be deducted before the final calculation is made.

A surviving spouse can claim one third of the net moveable estate if there are surviving children or one half of the net moveable estate if there are no surviving children.

Children of the deceased are entitled to one third of the net moveable estate equally among them if there is a surviving spouse. This is increased to one half if there is no surviving spouse.

Can a legal rights claim be defeated?

Sometimes we are asked if it is possible to contest a claim for legal rights. There is no mechanism to defeat the right to claim but steps can be taken to reduce the size of any potential claim, even simply by planning to invest funds in heritable property.

Take advice

If a solicitor contacts you about a potential legal rights claim you are entitled to take independent legal advice before making a decision which will have legal consequences for you. Or if you have taken on the role of an executor and are unsure how you should proceed please contact Kay Blaikie at Quill Legal who will be happy to discuss the matter with you.

Set up a call with Kay at Quill Legal for a preliminary discussion on 0131 564 1044 or send us an email.

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Kay Blaikie

Principal of the Firm
Get in touch with me when you need reliable legal advice on any aspect of Executries, Wills, Powers of Attorney and Notarial services.

Telephone: 0131 564 1044


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