What to do After a Death in Scotland ... Practical Advice for Times of Bereavement: 8th Edition

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PART V. RIGHTS OF SUCCESSION

Succession law says what happens to someone's property when they die. This information is only a guide to certain parts of the law. If you want to know how the law applies to you, get independent legal advice from a solicitor or a Citizens Advice Bureau.

The information set out below applies only to the distribution of estates of people who died after the Succession (Scotland) Act 1964 came into operation on 10 September 1964.

18. WHERE THE PERSON DID NOT LEAVE A WILL

If someone dies and does not leave a will, his or her estate (property) is known as an "intestate estate". The law sets out how intestate estates should be divided. Someone who represents the person who died and deals with his or her estate is called an "executor". You can find out more about the role of an executor in section 11.

The executor first has to pay debts and meet certain liabilities from the dead person's estate. After that, the executor can distribute the estate to the beneficiaries (the people who will benefit from the estate).

Certain beneficiaries have rights to claim from a dead person's estate. These are called "prior rights" and "legal rights". After prior rights and legal rights have been satisfied, the executor must distribute the rest of the estate in accordance with the law.

19. PRIOR RIGHTS

A widow, widower or surviving civil partner has prior rights in his or her late spouse or civil partner's estate. In this section we call someone with prior rights "the survivor". The executor must deal with prior rights before legal rights.

If the person who died owned a house, and the survivor lived there, he or she is entitled to the house and the furnishings and furniture of that house, subject to certain limits.

The survivor can claim:

  • the house, as long as its value is less than £300,000
  • the furnishings and furniture up to the value of £24,000.

If the house is worth more than £300,000 the survivor's entitlement is to £300,000 in money. If the house forms part of another property - for instance, if it is part of a farm or a shop - the entitlement could, in certain cases, be to money and not to the house. If that happens, the £300,000 limit will apply.

The survivor is also entitled to money from the estate. The amount depends on whether the person who died left children or "descendants" of children such as grandchildren or great-grandchildren.

If the person who died left children or descendants, the survivor is entitled to the first £42,000 out of the estate. If the person left no children or descendants, the survivor is entitled to the first £75,000.

20. LEGAL RIGHTS

A surviving spouse or civil partner and children are entitled to certain "legal rights" from the "moveable estate" of the person who died. The moveable estate can include things like money, shares, cars, furniture and jewellery. The other part of the estate is called the "heritable estate" and covers land and buildings.

The surviving spouse or civil partner
A widow, widower or surviving civil partner is entitled to:

  • one third of the moveable estate if the person who died left children or descendants of children (such as grandchildren)
  • one half of the moveable estate if the person who died left no children or descendants of children.

The children
The children are entitled to:

  • one third of the moveable estate between them if the person who died left a spouse or civil partner
  • one half of the moveable estate if the person who died did not leave a spouse or civil partner.

Each child has an equal claim. If a child would have been able to claim, but dies before his or her parent, the child's descendants (such as the grandchildren) can claim by the principle known as representation (see also section 5 below).

21. THE REMAINDER OF THE ESTATE

After the prior and legal rights have been satisfied, the rest of the intestate estate "devolves" according to legal rules. The chart on the next page describes the groups of people who inherit from an estate in this way.

If anyone is left alive in one group, no group further down the chart will inherit from the estate. For instance, if someone dies leaving children and one sister, the children only will inherit the remainder of the intestate estate. The order of succession in the chart is subject to the three general principles at section 22 below.

Chart to describe the groups of people who inherit from an estate

Note 1 Ancestors of the intestate person more remote than grandparents (for example, great-grandparents) successively take the whole. This applies to both maternal and paternal ancestors. However, if no ancestors survive in any generation, their brothers and sisters will inherit before ancestors of the next more remote generation.

This means, for example, that the brothers and sisters of a great-grandparent will inherit before the great-great-grandparents. If there are no surviving brothers and sisters of the intestate person's great-grandparents who are also dead, the great-great-grandparents will inherit.

Note 2 If the executor cannot trace any of the dead person's relatives in the categories above, the estate may pass to the Crown as "ultimus haeres". The person who acts for the Crown in this capacity in Scotland is the Queen's and Lord Treasurer's Remembrancer ( QLTR). You can find more about the QLTR's role on the Crown Office website http://www.crownoffice.gov.uk . You will also find the QLTR's details in Part VI.

22. THE THREE PRINCIPLES

The application of the order of succession above is subject to three general principles:

1. There is no preference in relation to gender or age.
For instance, brothers do not rank before sisters, or elder brothers before younger. In the case of things such as titles or coats of arms, there may be some preference for male people or older people to succeed first.

2. There is representation in all branches of succession.
This principle covers cases where someone with children dies before being able to inherit. For instance, person A has two children B and C, and B has two children X and Y. B dies, and a year later A dies. A's grandchildren, X and Y, will inherit the share of A's intestate estate that B would have inherited.

Chart to describe order of inheritance from the intestate estate

3. Siblings have preference over half siblings.
A sibling (brother or sister) and a half sibling of the person who died can both inherit. However, if there are any full siblings, the full siblings will inherit and the half siblings will not.

A half sibling is someone who shared only one parent with the person who died. A full sibling is someone who shared both parents with the dead person. If there are no full siblings, half siblings can inherit from the intestate estate.

For instance, if Mr C dies, leaving his sister and half brother, only his sister would inherit from his intestate estate (see diagram below).

The same principle applies to ancestors of the person who died. This means that, for instance, full siblings of grandparents of the person who died will inherit instead of half siblings of grandparents.

This principle is also subject to the principle of representation outlined above.

A descendant of a full sibling will inherit before a half sibling or a descendant of a half sibling. For example, a niece whose late mother was the full sibling of the person who died would inherit instead of the dead person's half brother.

Chart to describe order of inheritance from the intestate estate

23. WHERE THE PERSON LEFT A WILL

If someone dies leaving a valid will, the prior rights described in section 19 do not apply.

A surviving spouse or civil partner can still claim the legal rights described in section 20. However, if someone has rights under a will and legal rights, he or she cannot have both. Such a person must choose between them.

For example, if a man dies and in his will he leaves his widow £2,000, she can choose to accept it, or can instead claim the one third or one half of his moveable estate that is her legal right.

24. ADOPTED CHILDREN

For the purposes of succession law, the position of adopted children is that same as that of natural children. An adopted child has the same rights of succession in relation to his or her adoptive parent or parent's estate as a natural child. Similarly, adoptive parents have rights of succession in relation to their adopted child as if they are they the child's natural parents.

25. COHABITANTS

A new piece of legislation - the Family Law (Scotland) Act 2006 - introduces new rights for cohabitants. A cohabitant is either one of a couple who live together (or lived together) as if they were husband and wife or civil partners.

We expect this Act to come into force as part of Scottish law in 2006. When it does, a cohabitant will be able to ask the court for a share from their former cohabitant's estate. This will only apply in cases where the person who died does not make a will.

When the court considers giving a share of someone's estate to a former cohabitant, it will look at the couple's relationship. It will consider things such as:

  • how long the couple lived together
  • what sort of relationship they had (was it like a marriage or a civil partnership?)
  • what sort of arrangements they made about money. For example:
  • did they have a joint bank account?
  • did they support one another financially?

This will help the court to decide whether a cohabitant is entitled to an award under these rules.

If you think this might apply to you, you should seek independent legal advice from a solicitor or a Citizens Advice Bureau. Once the Act becomes law, you will be able to read more about what it does online at http://www.scotland.gov.uk/familylaw/ , and in a set of information booklets we will publish to go with the new law. You can contact the Scottish Executive on 0131 244 3581 if you have questions about family law.

26. IF YOU ARE MAKING A WILL OR NEED MORE GUIDANCE

The information in this part is a guide to help you understand rights of succession. Succession law is very complicated. If you are making a will or need further guidance, you should get independent legal advice. The Law Society of Scotland can give you the details of suitably qualified solicitors. You will find their details in Part V. You could also ask your local Citizens Advice Bureau ( CAB) for advice. You will find their details in your local telephone directory.