Legal rights (with a will)


No will? The estate will be distributed by the rules of intestacy.


An Overview

 

In Scotland, a living spouse or civil partner and any natural and adopted children (or their dependents if they died first) are entitled to a portion of the estate, even if they were deliberately left out of the will. This is the law and they have up to 20 years to claim their 'legal rights' from the date of death.

The portion of the estate they're entitled to is made up of everything except any property and land.

It is important to note that if anyone decides to take their legal rights, they will give up anything else that is left to them in the will - they must either accept the terms of the will or claim their legal rights.

Even if a spouse or child was left something in a will, their legal rights may be of higher value and they should be made aware of this.

If some people claim their legal rights and some do not, the legal rights of of the people claiming to do not change in value.

It is a good idea to hire a lawyer to deal with any legal rights issues. Potential beneficiaries should also seek professional guidance.


Executor responsibilities


If anyone has a potential legal rights claim, it is very important that executors make them aware of this because, if they don't, they could be held personally liable to pay them their inheritance.

If a beneficiary can't be found, there are services available that specialise in tracking down beneficiaries.

Although all known potential claimants must be notified, an executor is not expected to make extensive searches for unknown potential claimants. Unknown claimants would still have 20 years to make a claim, but they would have to pursue the residual beneficiaries.

If a potential claimant doesn’t want to claim their legal rights, it is a good idea to get them to put this in writing.

If the deceased left children under 16, executors may wish to hold back money until children turn 16 and can make a decision for themselves. Alternatively, you could ask residual beneficiaries to sign a letter saying that they will cover these types of claims should they arise in future.


Specific situations


Living spouse/civil partner and children


If there are any children, then the spouse/civil partner is entitled to one-third of the estate (not including any property or land), with another third being split equally between the children. The rest will be distributed by the terms of the will.


No living spouse/civil partner


If there is no living spouse/civil partner, all children are entitled to an equal share of half the estate, not including any property or land. If a child died earlier, then their children are entitled to their parent's share. The rest will be distributed by the terms of the will.


No children


If the deceased never had any children, then a living spouse/civil partner is entitled to half of the estate, not including any property or land. The rest will be distributed by the terms of the will.


Unmarried partners (cohabitants)


There is no such thing as 'common-law marriage' in Scotland. If an unmarried partner is not provided for in a will, they are not entitled to anything. If there is no will, then an unmarried partner may apply to the court for a share in their estate. They have 6 months from the date of death to do this. We recommend hiring a lawyer to do this.


Adopted and step-children


Legally adopted children have the same rights as natural children. Step-children have no claim.


Divorced spouses and former civil partners


Divorced spouses or former civil partners have no claim.


Find out more information about dealing with a death