When someone dies in Scotland, their children and spouse/civil partner always have a claim on that person’s estate, regardless of what the person’s Will says. These are called ‘Legal Rights’ and only apply in Scotland.
If you are the Executor for an estate under Scottish law, you need to understand how Legal Rights work and whether they are relevant for the estate. Otherwise, you could be personally responsible for paying money out to claimants.
In this article
When do you need to consider Legal Rights?
As an Executor named in a Will, you might need to consider Legal Rights if the person who died is survived by their legal spouse or civil partner, and/or at least one descendant, particularly if any of these people are not equally included in the terms of the Will.
‘Descendant’ means their children, grandchildren, etc. This only includes biological and legally adopted children. It does not include step children or foster children.
Common scenarios that mean you don’t need to consider Legal Rights
You won’t need to consider Legal Rights if the person has:
no surviving spouse, and all their children inherit the estate equally
no descendants, and their spouse inherits everything
no surviving spouse or descendants at all
Estates without a Will
The information on this page is for Executors named in a Will. If the person died without a valid Will, Legal Rights are taken into account when the law dictates who inherits the estate.
Who can claim inheritance under Scottish Legal Rights?
Regardless of what the Will says, someone might be able to make a Legal Rights claim if the person who died was their legal spouse or civil partner, parent, or grandparent.
Spouses and civil partners
Partners of the person who died can make a Legal Rights claim as long as they were legally married or in a civil partnership.
Unmarried partners
Unmarried partners can sometimes make a claim under ‘Section 29’, but this is not an automatic right, and must be done within 12 months. If your partner has died and you were not legally married or in a civil partnership, you need to speak to a lawyer if you want to make a claim under Section 29.
Descendants
Someone can make a Legal Rights claim if the person who died was:
named as their parent on their birth certificate, adoption certificate or declaration of parentage, or
their biological parent
They are legally entitled to this regardless of whether they were still in contact with their parent.
Legal Rights do not apply to foster parents or step parents. If you’re not sure about legal parentage, it’s best to speak to a lawyer.
Grandchildren can claim their parent’s share if that parent has died.
What can people claim?
Claims are based on the value of someone’s ‘moveable estate’, after certain expenses have been paid out.
What is the moveable estate?
The ‘moveable estate’ refers to all the money and assets the person owned when they died, excluding any property or land.
The person’s legal partner/spouse is entitled to:
half the moveable estate if the person never had any children, or if their children and any grandchildren died before them
a third of the moveable estate if they have at least one surviving child or grandchild, of any age
Children (of any age) are entitled to:
half the moveable estate, equally divided between the number of children, if the person has no legal partner/spouse
a third of the moveable estate, equally divided between the number of children, if the person has a surviving legal partner/spouse
The person’s grandchildren are entitled to claim their parents’ share if that parent has died.
Choosing whether to claim
If a potential claimant has been left something in the Will, any Legal Rights claim they make would replace what they have been left. It is not in addition to what they have been left.
For example, if someone only leaves their share of a property to their wife, she could choose to make a claim on the overall moveable estate, but this means she would not get the share of the property.
Gifts
If the person gave any gifts to a claimant before they died, this will reduce the amount of their potential claim. This is called ‘collation’. We recommend getting legal advice in this situation, particularly if there is more than one potential claimant.
Example Legal Rights calculation
This example uses a fictional woman called Morag who has died.
Morag was married to Ali. They have two adult children, Heather and Sam. Heather has one child and Sam had 2 children. Sam died before his mum, Morag.
After deducting the relevant debts and expenses, Morag’s estate consists of a house and £60,000 in a bank account. Legal rights claims only apply to the £60,000, which is the ‘moveable estate’.
Morag’s Will leaves the house to Ali and leaves the £60,000 equally between Ali and a charity.
Heather and Sam, her children, can claim one third of the moveable estate equally between them. A third of the moveable estate is worth £20,000, so they could claim £10,000 each.
Because Sam has died, his children can claim his share instead, equally divided. So Sam’s 2 children can claim £5,000 each.
Heather’s children cannot make a claim because Heather is still alive.
By law, the Executors of Morag’s Will must contact Heather and both of Sam’s children to tell them about their potential claim.
If everyone chooses to claim, the value of the moveable estate becomes £40,000. This is then divided between Ali and the charity, according to the terms of the Will.
As Morag’s husband, Ali is legally entitled to one third of the moveable estate. However, the amount he has been left in the Will is higher than the amount he would have been entitled to claim. This means the Executors do not have to get in touch with him about Legal Rights.
Get help calculating legal rights
Our Confirmation support services include detailed help working out the value of claims or potential claims
How long do people have to claim?
People can make a Legal Rights claim for 20 years after someone dies, sometimes longer if they weren’t notified.
Help making a claim
As we are not a legal firm, we can’t give advice to potential claimants. If your spouse, parent or grandparent has died and you want to make a Legal Rights claim, please contact a solicitor.
Executors’ responsibilities around Legal Rights
As an Executor, it is your legal responsibility to:
understand whether Legal Rights are relevant to the estate
contact potential claimants to tell them they could claim
get potential claimants to either make a claim or ‘discharge’ their claim, meaning they sign away their rights
If you don’t do this, you could be personally liable for paying out any future claim, jointly with other Executors, including interest.
If you are worried that claimants might come forward in the future despite your best efforts, you could get Missing Beneficiary Insurance.
Are Legal Rights relevant to the estate?
As an Executor, you need to consider Legal Rights if the person who died has a legal spouse/partner or any children (‘potential claimants’).
You first need to work out the amount potential claimants could be entitled to.
Step 1: Add up the value of all the deceased’s worldwide ‘moveable’ assets, including assets held in trusts if the person was still benefiting from them. Do not include property/land, but do include caravans and park homes, as these count as ‘moveable’.
Step 2: Deduct debts and expenses, including:
debts or other liabilities the person owed on the day they died
funeral expenses
expenses of administering the estate up to, and including, the point of applying for Confirmation, like the court fee, extra death certificates, and professional fees.
Step 3: Split the leftover money according to Legal Rights, as described under ‘What can people claim?’
Working this out can be difficult. Our support packages can help you with these calculations, although you might need legal advice if your situation is very complicated.
Contacting potential claimants
Once you know the value of a potential claim, you have to contact potential claimants if:
they are not included in the Will at all
the amount left to them in the Will is worth less than they could claim under Legal Rights
You are legally responsible for tracking down potential claimants to tell them their rights.
This might be difficult if a potential claimant was estranged from the person who died. You still need to contact them. If a potential claimant has not discharged their claim, they could still come forward to make a claim for at least 20 years after the person died.
Can’t find a claimant?
If you’re having trouble finding a potential claimant, there are services available that specialise in tracking them down.
In the meantime we recommend keeping the amount they could claim in a separate, interest bearing, account.
Making or discharging a claim
If someone chooses to make a Legal Rights claim, that means they 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.
This decision is up to each individual. If one person discharges their Legal Rights, this does not affect the rights of other claimants or the amount they can claim.
Paying a claim
If someone chooses to make a claim, you should treat the amount they are entitled as if it were part of the Will, and ignore anything else left to the person in the Will, if there is one.
Discharging a claim
If potential Legal Rights claimants are happy to honour the terms of the Will and are not claiming their Legal Rights, they should sign a ‘discharge of Legal Rights’, a letter that confirms they are happy to accept the terms of the Will.
This discharge letter needs to be signed willingly and with full possession of the facts. You need to tell potential claimants to seek independent legal advice if they are in any way unsure about signing away their rights.
Claimants under 18
If a potential claimant is under 18, they are below the ‘responsible age’ to make or discharge a claim. In this case, you could:
hold back money until children turn 18 and can make a decision for themselves.
ask the beneficiaries in the Will to sign a letter agreeing to pay a future claim from someone currently under 18.
If you still have questions about a Legal Rights claim for someone who is under 18, you might need to speak to a lawyer.
If a potential claimant is over 18 but cannot make legal decisions for themselves, we also recommend speaking to a lawyer.
Get help with Legal Rights
Our Confirmation support services include support navigating Legal Rights, including:
checking your calculations
providing template letters to make or discharge a claim