A surviving spouse or civil partner is entitled to one-third of the deceased's worldwide new moveable estate if the deceased left children or descendants of children or to one-half of it if the deceased left no children or descendants. The children are collectively entitled to one-third of the deceased's worldwide net moveable estate if the deceased left a spouse or civil partner, or to one-half of it if the deceased left no spouse or civil partner.
Each child has an equal claim. It should be noted that the position of adopted children is the same as that of natural children for the purposes of succession in Scotland.
Legal rights are an automatic entitlement. Legal rights can only be rendered extinct if they are discharged during the deceased's lifetime, renounced after the deceased's death, or not claimed in 20 years after becoming enforeceable.
Executors should always ensure that the legal rights are either claimed or formally discharged before they complete the administration of the estate, so that there is no risk of a claim being made subsequently. A spouse, civil partner or children acquire a vested right to claim legal rights at the date of death. These rights pass to their executors if they die before payment is made. Interest accrues from the death to the date of payment. The rate of interest is not fixed. It is what the sum earned or could have earned by prudent management.
Legal rights are rights to the payment of a sum calculated on the value of the net moveable estate, and not to a particular asset. However, if all the beneficiaries are in agreement, assets can be made over to a claimant in satisfaction of legal rights.
The Succession Scotland Act allows a grandchild to represent a child who has predeceased, i. Representation applies to both adopted and illegitimate grandchildren of the deceased. The issue of previous advances does not alter the position of whether or not a child is able to claim his or her legal rights. However, previous advances would reduce the share of the legal rights fund to which that child would be entitled. This is known as collatio inter liberos.
In other words, any advances made to a child by the deceased parent during his or her lifetime are taken into account in calculating and distributing the fund. The purpose of collation is to ensure equality in the distribution of the legal rights fund among claimants. If one claimant has received advances from the deceased during his life, other claimants can require the advances to be notionally added to the fund.
However, it applies only when there is more than one claimant. We are delighted to announce the promotion of six paralegals in our Residential Property, Employment, Private Client and Commercial Property teams. Samantha Miller discusses a case which considers the complexities of removing an executor when relationships breakdown.
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Insights Understanding Legal Rights. Back to Insights Search. What are Legal Rights and who is entitled? How are Legal Rights calculated?
Why you should be aware of Legal Rights Claimed Legal Rights can frustrate those who are intended to inherit under the terms of a Will. They may also lead to the business property being sold or broken up to meet claims and further consequences might include loss of tax reliefs What can be done about them?
Related Services Divorce and Separation Wills. Call your nearest office Edinburgh Glasgow Dundee Dundee Property What happens to the legacy at that point will depend upon the terms of the will, but in many cases, it will fall into residue.
If a legal rights claim is made, it is important that appropriate legal advice is sought as early as possible. For the purposes of calculating legal rights, Scots law recognises a distinction between different types of assets, heritable and moveable. Although there are a number of anomalies and the issue is complex, generally heritable assets are houses, land, etc. The proceeds of life policies are generally moveable, unless the policy has been formally assigned to a lender in security for a heritable debt like a loan secured on a house , due by the deceased in which circumstances the proceeds of the life policy may be treated as partly heritable and partly moveable for the purposes of succession.
A legal rights claim only lies against the net moveable estate i. Before valuing the legal rights, there has to be deducted from the moveable estate the funeral expenses, the inheritance tax appropriate to that portion of the estate and the expenses of winding up the estate up to the point of obtaining confirmation. Interest runs on legal rights from the date of death until payment.
Where a deceased left a spouse or civil partner and children, the legal rights fund for the spouse or civil partner is one third of the net moveable estate and the legal rights fund for the children is one third of the net moveable estate.
For example, if a deceased man leaves a widow and three children, and makes no provision for any of these in his will, the widow is entitled to claim one third of his net moveable estate and each of the children is entitled to claim a one ninth share of his net moveable estate. Where a deceased leaves either a spouse or civil partner and no children on the one hand, or children but no spouse or civil partner on the other hand, the legal rights fund increases to one half of the net moveable estate.
For example, if the deceased leaves a widow but no children, the widow is entitled to claim one half of the net moveable estate. Likewise, if the deceased leaves four children but no spouse or civil partner, the four children are each entitled to claim a one eighth share of the net moveable estate.
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