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Legal Rights – What Are They?

April 12, 2022 Wills, Executry & Probate

Legal Rights in Scotland

When someone dies in Scotland, certain family members are entitled to claim a proportion of the deceased’s estate, even if the deceased had a Will in place. This is described under Scots Law as “Legal Rights”.

Legal Rights can protect certain family members who have been excluded or left an unfair share in an existing Will when someone dies.

Under Scots Law, surviving spouses, civil partners and children are entitled to claim Legal Rights on an Estate of someone who has died.

In some cases, Legal Rights can also be claimed by grandchildren where there is a predeceasing child of the deceased.

Under Scots Law, a Legal Rights claim can only be made against the moveable estate of the deceased.

The moveable estate includes all assets of the deceased’s estate, apart from land and buildings (these are known as the heritable estate).

No. Under Scots Law, you cannot benefit from Legal Rights and the terms of a Will.

If Legal Rights are claimed by a surviving spouse, civil partner or children, they automatically give up their entitlement under the Will of the deceased.

The existence of a Will does not defeat a family member’s right to claim Legal Rights. However, as Legal Rights can only be claimed against the moveable estate, the right to claim Legal Rights can be defeated where there is only heritable estate left by the deceased.

Another scenario where Legal Rights cannot be claimed is where the deceased had a Discretionary Trust in place. Assets held within a Discretionary Trust are exempt from Legal Rights, even where there is moveable estate such as cash and shareholdings.

In Scotland, Legal Rights can be claimed for up to 20 years after the date of death, provided that they have not been formally discharged by writing.

By accepting your entitlement under a Will, a person is presumed to have discharged their right to claim Legal Rights.

Legal Rights claims can sometimes be quite technical. Here at Jones Whyte, we have an experienced, dedicated Estate Planning team that is willing and able to advise on this area in more depth, for more information on Legal Rights:

Contact us now at 0330 175 1234 or complete our online form to book an appointment with us.

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