Succession law in Scotland sets out what happens to a person’s assets when they die. It ensures fair distribution based on a will or legal rules. Understanding these laws can help avoid disputes and confusion.
What Is Succession Law?
Succession law in Scotland decides who inherits property, money, and possessions after someone dies. If the person has a valid will, their estate follows their wishes. If they die without a will, the law decides how their estate is divided.
What Happens If There Is a Will?
A will is a legal document stating how a person’s assets should be shared. If a will exists, the executor (a person chosen in the will) carries out the instructions. The executor must apply for legal authority, known as confirmation, from the Sheriff Court. Once confirmed, they can collect and distribute the assets.
Having a will makes succession easier. It allows the deceased to ensure their wishes are followed and reduces disputes among family members.
What Happens If There Is No Will?
When someone dies without a will, they are intestate. Succession law in Scotland sets strict rules on how the estate is divided. The court appoints an executor-dative to handle the estate. Assets are then shared according to a legal order.
Who Inherits Under Intestacy Rules?
- Spouse or Civil Partner: They get prior rights, including the house (up to £473,000), furniture (£29,000), and cash (£50,000 if there are children, or £89,000 if there are none).
- Children: After prior rights, children have legal rights to a share of the moveable estate (money, shares, personal belongings). They split one-third if there is a spouse and half if there is none.
- Other Relatives: If no spouse or children exist, the estate passes to parents, siblings, and then further relatives in a set order.
- The Crown: If no relatives are found, the estate goes to the Scottish Government.
This legal framework ensures fair distribution, but it may not align with the deceased’s wishes. That is why writing a will is crucial.
Legal Rights in Scotland
Scottish law protects spouses and children, even if a will tries to leave them out. Legal rights mean:
- A surviving spouse and children must get a share of moveable property.
- They can claim or reject these rights, depending on what is in the will.
- This rule does not apply to land or buildings.
Legal rights can create unexpected outcomes. For example, even if a parent chooses to leave everything to a new spouse, their children may still have a legal right to claim part of the estate.
What Is Confirmation?
Confirmation is Scotland’s version of probate. It gives the executor legal power to handle the estate. The process involves:
- Listing all assets and debts.
- Valuing the estate.
- Submitting an application to the Sheriff Court.
- Paying any inheritance tax due.
- Distributing the assets to the beneficiaries.
Smaller estates (under £36,000) may follow a simpler process.
Inheritance Tax
Inheritance Tax (IHT) applies if the estate is over £325,000. Anything above this may be taxed at 40%. Spouses and charities are usually exempt. Executors must report the estate’s value to HMRC and pay any tax due within six months.
If the estate includes property or high-value assets, professional advice may be needed to reduce tax liability legally.
Can You Challenge a Will?
Yes, a will can be challenged in certain situations. Common reasons include:
- The person lacked mental capacity when making the will.
- The will was made under undue influence.
- The document does not meet legal requirements.
Legal rights also allow children and spouses to claim a share, even if excluded.
Changing Inheritance Rules
It is possible to change who gets what through a deed of variation. All affected beneficiaries must agree. This is often used for tax planning or to provide for someone left out of a will.
Another option is disclaiming inheritance. A beneficiary can refuse their inheritance, allowing it to pass to the next eligible person. This can help reduce tax liabilities or direct assets to someone in greater need.
Conclusion
Succession law in Scotland ensures assets are distributed fairly. If there is a will, the executor follows its terms. If there is no will, the law decides. Legal rights protect spouses and children. Understanding these rules can help avoid problems. Seeking legal advice can make the process smoother.
Planning ahead and writing a will ensures your wishes are respected. It also reduces stress for loved ones and prevents legal complications.