If you die intestate – without a Will – and you have Children, they may have certain rights to your estate. The extent of your children’s entitlements will depend on whether at the time of your death you were married or in a civil partnership.

Prior Rights of a Spouse or Civil Partner

Under the law of intestacy in Scotland, the spouse/civil partner of a deceased person is entitled to “Prior Rights”. These are automatic rights that a surviving spouse/civil partner has being;

• your dwellinghouse (up to the value of £473,000 and as long as this was their home);
• the furnishings and furniture of your house (up to the value of £29,000); and
• a cash payment (of £89,000 if you do not leave children (or descendants); or of £50,000 if you leave children (or descendants)).

Prior Rights cease to apply upon divorce or if you and your spouse/civil partner are separated and renounced your rights of succession under a separation agreement. We recommend seeking advice from a family law practitioner in the event of a breakdown in your relationship and putting a Will in place.

Legal Rights

If your estate is not exhausted by Prior Rights (or if Prior Rights do not apply by reason of divorce, separation agreement or if there is no surviving spouse/civil partner), and you have a child or children, they will be entitled to claim their Legal Rights to your estate.

Legal Rights are an entitlement to a proportion of your moveable estate (i.e. cash, savings, investments, personal possessions etc. – everything with the exception of land and buildings).

Legal Rights can also be claimed by a spouse/civil partner.

If there is a surviving spouse/civil partner and children, the Legal Rights amount to a one third share for the spouse/civil partner and a one third share for the children among them. If there is no surviving spouse/civil partner but there are children (or vice versa) the Legal Rights amount to a one-half share for the children among them.

Free Estate

The rest of the estate left after payment of Prior Rights and/or Legal Rights is known as the “Free Estate”, and if you have children, this will be distributed to them.

If there are no surviving children, the relevant legislation lists which of your nearest relatives and in what order will receive the Free Estate – for instance the Free Estate could be split 50/50 between your parents and your siblings.

Age of Legal Capacity in Scotland

It is important to know that if you die intestate and you leave young children, they will be entitled to receive their share of your estate at the age of 16 years which is the age of legal capacity in Scotland.

This could be concerning if your children will be likely to receive large sums of money at such a young age or if they are affected by a disability or a condition which prevents them from manging their own affairs.

To avoid this outcome, we recommend putting a Will in place.

A Will allows you to determine who receives a share of your estate, how much and when. You can include trust provisions to preserve the inheritance of a beneficiary until an older age (i.e. age 18, 21 or 25) or indefinitely.

A Will allows you to avoid certain administrative procedures required if/when a beneficiary under the age of 16 years is entitled to receive sums over £20,000. In such circumstances, the executor of your estate will need to seek directions from the Accountant of Court to ensure the funds or property due to a child are administered and managed properly.

Guardians to young children

A Will also allows you to appoint one or more individuals to act as guardian(s) to your children either jointly with the surviving parent or in the event of the death of both parents. This can give you peace of mind that someone who you trust will be able to look after your children and it will also avoid court proceedings to have a guardian appointed.

Executors and Trustees

Finally, a further advantage of having a Will in place is that you appoint one or more individuals of your choice to act as your executor(s) and trustee(s) and therefore deal with the administration of your estate and/or a trust created under your Will.

If you do not have a Will in place, one or more beneficiaries may apply to be appointed as executor(s). There are specific rules as to who is entitled to be appointed as executor. There are also additional procedures and additional costs which will be incurred in connection with these procedures which can be avoided by preparing a Will.

If you would like to discuss your circumstances in more detail or receive advice, please do not hesitate to contact our Personal Law Team. A member of our Team will be happy to assist you.

DISCLAIMER

The content of this page is for information only. It is not intended to be construed as legal advice and should not be treated as a substitute for specific advice. Gibson Kerr Ltd accepts no responsibility for the content of any third party website to which this webpage refers. Gibson Kerr Ltd is regulated by the Law Society of Scotland.

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