Children have legal rights to your estate

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In Scotland, the law seeks to protect the right of spouses, civil partners and children to share in the estate of a deceased spouse, partner or parent. In this article, we’ll have a look at the rights children enjoy to share in the estate of their parent.

The basic principle in Scots Law is that parents can’t disinherit their children. However, as with all legal principles, things aren’t always as simple as they seem. In this article, we’ll discuss what can be a fairly complex are of law.

First of all, these rights are called Legal Rights in Scotland. They are an automatic entitlement. They are enjoyed by any child and include adopted and illegitimate children. Legal Rights also apply whether or not the parent makes a Will.

Also, the child doesn’t need to apply to the court to secure their Legal Rights. These rights apply to what’s known as moveable estate. Moveable estate consists of cash, shares, cars, jewellery etc., in fact, anything that’s not heritable property (generally land and buildings).

As we mentioned, there are two scenarios where Legal Rights apply. The first is where the parent doesn’t leave a Will and the second where there is a Will.

Where the parent doesn’t leave a Will

If a parent dies without leaving a Will but has a spouse or civil partner, before Legal Rights can be dealt with, the spouse or civil partner’s Prior Rights must be dealt with. Spouses and civil partners have, in addition to Legal Rights, other rights called Prior Rights which apply when there’s no Will and have to be satisfied before Legal Rights.

This means the surviving spouse or civil partnere is entitled to:

  • The family home (up to a certain value – currently £473,000);
  • The furniture in that home (up to a certain value – currently £29,000); and
  • A cash sum (up to a certain value – currently £50,000 if there are children or £89,000 if there are no children

If those Prior Rights exhaust the estate, then there will be nothing left to pay out for Legal Rights. If, however, there is moveable estate left over after the Prior Rights have been satisfied, then the remainder of the estate will be divided up in the following way:

  • The spouse or civil partner’s Legal Rights entitle them to receive one third of the remaining estate,
  • Any child or children’s Legal Rights entitle them to receive one third of the remaining estate divided equally amongst them
  • After satisfaction of the Legal Rights, in this example, any child or children are entitled to the remainder of the estate irrespective if it is made up of heritable or moveable property.

If any child has died before their parent and that child had children, then those children are entitled to their parent’s share in their grandparent’s estate. This will be divided equally between or amongst them.

Where the parent has made a Will

The first thing to note about the situation where there is a Will is that any spouse or civil partner does not have Prior Rights. Prior Rights only apply when there is no Will.

That means when you are preparing your Will, you should always remember the following rules in relation to Legal Rights:

  • Legal Rights are automatic rights relating to your moveable estate;
  • If you have no children, you spouse or civil partner’s legal Rights entitle them to one half of your moveable estate;
  • If you have children but your spouse of civil partner has predeceased you, your children’s Legal Rights entitle your children to share in one half of your moveable estate;
  • If you have a spouse or civil partner and children, your spouse or civil partner’s Legal Rights entitle them to a one third share in your moveable estate and your child or children’s Legal Rights entitle them to a one third share in your estate.

You should also be aware that should either your spouse or civil partner of child make a claim for Legal Rights to your estate, they will forego any provision you make for them in your Will.

This area of law can be pretty complex and sometimes we need to make some detailed calculations of the impact Legal Rights may have. If you’re looking for  specific guidance on preparing your Will and the implications of Legal Rights, please get in touch.

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