Scottish Legal Rights: What are they and what to do

In Scotland, uniquely, spouses/civil partners and children always have a right to inherit from the estate, even if they are 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. In this post we’ll show you how legal rights work, what you have to do as an executor, and how we can help you.

If you are the child or spouse of a deceased person that was not left a share of the estate as outlined below, you should be offered to claim your legal rights by the executor of the estate, with a note of the value. If you have not received this information, you should seek legal advice.

Legal rights, also referred to as the ‘legitim fund’, may have to be taken into account when the person who died has:

• a spouse/civil partner who was not left the entire estate
• any children who were not left the entire estate equally between them

If there is a surviving spouse/civil partner and children, then it is almost certain that you will need to consider legal rights at some stage during the administration of the estate.

If the deceased wasn’t married and never had any children, then there are no legal rights to think about. 

If there’s no Will, legal rights are taken into account when the law dictates who inherits the estate. 

How much family members are entitled to depends on the family situation and does not apply to any property or land.

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 (natural and adopted children have equal rights). 

If a child died before the deceased, then their children are entitled to their parent's share. 

The rest, including any property or land, will be distributed by the terms of the Will. 

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 first, then their children are entitled to their parent's share. 

The rest, including any property, will be distributed by the terms of the Will.

If the person who died never had any children, then a spouse/civil partner is entitled to half of the estate, not including any property or land. 

The rest, including any property, will be distributed by the terms of the Will.

If an unmarried partner is not provided for in a Will, they are not automatically 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 and will need to hire a lawyer to apply for them.

There is no such thing as 'common-law marriage' in Scotland anymore, although if the relationship was formed prior to 2006 you may be able to get the court to establish a "marriage by cohabitation with habit and repute" . 

If someone claims their legal rights, they (and the executors) should be aware of the following:

• 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 inherits something in a Will, their legal rights may entitle them to a higher value.
• If some people claim their legal rights and some do not, the legal rights of the people claiming do not change in value.
• If any gifts were given to one claimant but not another during the lifetime of the deceased (like a deposit for a property, for example), they may be deducted from their legal rights entitlement. This is called ‘collation’, and we’d recommend seeking legal advice to help get this right if this is the case for you as the calculations can get very complicated.
  

Legal rights are calculated as follows:

1. Add up the value of all the deceased’s worldwide assets, excluding property/land. This should include assets in trusts if the deceased continued to benefit from those assets (like living off the income from investments held in a trust).
2. Deduct the funeral expenses and any debts or other liabilities that existed on the date of death.
3. Deduct any expenses of administering the estate up to, and including, the point of applying for Confirmation like the court fee, charges for extra death certificates, and any professional fees like lawyers fee or a service like ours.
4. Split the leftover money in the relevant way described in one of the scenarios described above.
5. If a claimant has previously received any gifts from the deceased and is wanting to claim their legal rights, the amount they have previously received should be subtracted from their claim (see note on ‘collation’ above).
   

If potential legal rights claimants are happy to honour the terms of the Will and aren't claiming their legal rights, you should get them to sign a letter saying they are happy with this. This letter is officially called a ‘discharge of legal rights’. Sorting this out before you apply for confirmation makes it easier to fill in the forms, in some cases.

People signing away their legal rights should seek independent legal advice if they are in any way unsure of what they are doing - you should tell them this. 

Although we don’t offer any personal advice on legal rights, as part of our Probate Support Service, we can check your calculation and supply you with a template ‘discharge of legal rights’ letter for potential claimants to decline their legal rights.