In Scotland, a parent cannot completely disinherit their children. Scots law gives the children of a person who has died a basic level of protection: even if a child is not named in the will, they have a right to claim a share of the estate. This right takes precedence over the terms of the will and is known as legal rights.
Our private client solicitors can help you make a legal rights claim in Scotland, and we can also help with wills, estate planning, power of attorney and executry. This guide explains what moveable estate is, how legal rights work and what to do if you think you have a claim.
What is moveable estate in Scotland?
Scots law divides a person’s estate into two types of property. Legal rights can only be claimed from the moveable estate.
Heritable estate
Land and buildings
Property such as a house or flat. Legal rights cannot be claimed from heritable estate.
Moveable estate
Everything else
Money in the bank, savings and investments, shares, cars, furniture and personal belongings. This is the estate that legal rights are claimed from.
Key point
Because legal rights come only from the moveable estate, an estate made up mainly of property may produce a much smaller legal rights claim than you might expect.
Can you claim if you were left out of a parent’s will?
Yes. Even if a child has been omitted from a parent’s will, they can still make a legal rights claim on the parent’s estate. Depending on the size of the estate, the claim can be worth a substantial amount.
If you are named in the will
If a parent’s will leaves you a legacy, you will usually have to choose between accepting it and claiming legal rights. You cannot normally have both unless the will says otherwise, so it is worth taking advice on which is worth more before you decide.
How much can a child claim?
The amount depends on whether the person who died left a surviving spouse or civil partner. Legal rights are calculated on the net moveable estate, after debts and expenses, and the children’s share is divided equally between them.
One third
of the net moveable estate, shared between the children, if there is a surviving spouse or civil partner
One half
of the net moveable estate, shared between the children, if there is no surviving spouse or civil partner
Surviving spouses and civil partners
A surviving spouse or civil partner can also claim legal rights: one third of the net moveable estate if the person who died had children, or one half if there were no children.
How long do you have to make a claim?
20 years
to make a legal rights claim, counted from the date of death, before the right is lost for good
Legal rights must be claimed, or formally given up, within 20 years. After that, the right is lost. Where a child was under 16 when their parent died, HMRC guidance suggests the 20 years may not start until they turn 16, although that point is not settled. If you think you might have a claim, it is best to act much sooner. Read more about time limits for legal claims in Scotland.
What must executors do about legal rights?
Legal rights must either be claimed or formally given up (discharged). Executors are responsible for making proper enquiries to find all the children and any surviving spouse or civil partner, and for telling them about their right to claim. If there is no will, or the will does not cover the whole estate, a surviving spouse or civil partner may also have prior rights.
Key point
An estate should not be wound up until all legal rights, and any prior rights, have been dealt with.
How do you make a legal rights claim?
If you think you are entitled to legal rights from a parent’s estate, it is worth asking about your claim, even if many years have passed. Executors may have set aside funds to meet legal rights claims.
When you make a claim, you are entitled to a breakdown of the value of the net estate. Debts and deductions, such as funeral costs, the costs of administering the estate and inheritance tax, are taken off before your share is calculated.
Lifetime gifts
Collation
If a parent made certain large gifts to one child during their lifetime, such as money to set them up in a home or business, that child may have to bring the gift back into account before the children’s share is divided, so that it is shared fairly.
If the estate has been paid out
Bond of caution
If the executor was appointed by the court (an executor dative), they will usually have had to obtain a bond of caution. This is a form of insurance that may cover your claim if the executor has distributed the estate without meeting it.
How can we help with your legal rights claim?
Legal rights claims can be large and sometimes complex, depending on the value of the estate. Our private client solicitors can advise you on your circumstances, check that your share has been calculated correctly and guide you through your claim. We also advise on wills, estate administration, powers of attorney, guardianship and more.
Speak to our private client team
We offer a free initial consultation by telephone or video, so you can find out where you stand before deciding what to do next.
