Following a recent review, the Scottish Government announced they will not be seeking to remove the distinction between the types of property for the purposes of calculating legal rights. The Scottish Law Commission proposed to amend the calculation of legal rights to take into account the deceased?s entire estate both heritable (land and buildings) and moveable (cash, money in the bank, shares, furniture, cars, jewellery and other personal effects).
What are legal rights?
Legal rights mean that a deceased person cannot entirely disinherit family members. Under Scots law certain family members are entitled to legal rights when a person dies testate (with a will) or intestate (without a will).
Who can claim legal rights?
A surviving spouse, civil partner and children (including adopted children). If the deceased left a will a spouse/civil partner and children cannot claim both their rights under the will and their legal rights ? they need to choose one or the other. Legal rights do not extend to unmarried partners or cohabitants ? there are separate rights available to cohabiting couples which involve a 6 month time limit from the date of death of the deceased person.
What can be claimed?
Legal rights is calculated on the net moveable estate of the deceased person. The net value of the moveable estate is the moveable estate minus debts and other liabilities (i.e. ?funeral expenses, purvey, legal expenses, confirmation costs). The amount to be claimed is dependent on who survives the deceased. If a spouse/civil partner and children survive each ?class? of person are entitled to claim one third of the net moveable estate. If only one 'class' of either a spouse/civil partner or children survive, the surviving ?class? of person is entitled to claim one half of the net moveable estate. The remaining third falls into ?free estate?. If there are children they will be first in line to receive this, if not it could pass to the deceased?s siblings rather than their surviving spouse.
How long do I have to claim legal rights?
Legal rights are valid for 20 years. Usually an executor of an estate would establish at the time of winding up the deceased person?s estate whether the surviving spouse/civil partner and children intend to claim or discharge their legal rights.
Additional rights of a surviving spouse/civil partner
Where the deceased has died intestate there are other rights available to a surviving spouse/civil partner. These are known as prior rights. They are the first claim on the deceased person?s estate and will often exhaust the deceased persons estate before any legal rights claim is made.
The surviving spouse or civil partner is entitled to
- House ? up to a value of ?473,000;
- Furniture ? up to ?29,000;
- Cash - ?89,000 (where there are no children) or ?50,000 (where there are children).
Should you wish to discuss the any of above please contact a member of our Private Client Team who will be happy to assist.
