LEGAL RIGHTS

The legal claims of a surviving child in a deceased’s estate exist in Scotland and affect the moveable estate only.  This means the property in name of the deceased excluding house and land. Moveable property includes bank accounts, certain insurance polices, investments, interest in a business or partnership (such as a farming partnership, which includes stock, crop and implements, etc), the contents of the deceased’s home, value of any motor vehicles and certain pensions.

In an intestate estate – that is, where the deceased has died without leaving a Will – any children, including those born outwith marriage, are entitled to claim one-third of the net moveable estate when there is a surviving spouse and one-half when there is not.  When children take, they share equally between them and their lawful issue of a pre-deceasing child taking that child’s share. 

Legal Rights calculations in a testate estate – or where the deceased has left a Will – are made after deduction of funeral expenses, any debts against the estate and administrative costs of obtaining Confirmation (Probate) on the estate.

These claims exist whether the deceased is testate (meaning whether he left a Will) or intestate, but should the deceased leave a Will, the claim is an alternative and not an addition to the provision which may be left under the Will.

The child’s right to claim Legal Rights is lost by negative prescription after 20 years from the parent’s death.

Interest accrues on a claim for Legal Rights from the deceased’s date of death and, depending whether or not there was a Will, attracts interest of either around 5% annually from date of death to date of payment, or 7% annually where the estate is intestate.

Until the child reaches the age of 16 years, it is a parental responsibility to be a child’s legal representative, where practicable and in the child’s interest.  This means that the parent will be able to sign the Legal Rights claim on the child’s behalf.

You can leave your heritable estate to whoever you want unless there is a survivorship clause in the title deed.

Types of Property

Land, buildings, etc

Heritable Estate

Anything else - including money, shares, interest in partnership or business, savings certificates, content of house (furniture and plenishings, paintings, jewellery, etc) 

Moveable Estate

Even when you have died, leaving a Will, your spouse or civil partner still has the right to make a claim. This claim is to a share in your moveable estate only.

The share amounts to 1/3rd of your moveable estate after debts, expenses, etc. are paid.

In Scotland, children cannot easily be disinherited, but by making a Will,  you can limit their claims to a share in your moveable property.

Even if not mentioned in your Will, children have the right to claim a share (they don't have to claim but, if under 16, a claim will likely be made for them) in your moveable estate only. This refers to all your children, whether children of your marriage, former marriage or partnership, or any child born outwith marriage or partnership.

Follow these tables to find out what your child is entitled to claim:-

Under present Scots law, cohabitation does not affect your children's claims upon your estate at your death.