In Scotland, children cannot be completely disinherited by their parents. For moral and social reasons, the law has always provided children of a deceased with a basic level of protection, so that even if a child is not mentioned as a beneficiary in the will of a parent, the child still has a right to claim on the estate which takes precedence over the terms of the will. This is known as the child’s entitlement to Legal Rights.
Our team of private client lawyers can assist you when making a Legal Rights Claim in Scotland or if you need a Will, Power of Attorney or legal help with executry help (winding up an estate) or estate planning. Call us on 0141 429 8166 or complete our online contact form to arrange an appointment.
A Legal Rights claim on a parent’s estate can be made even when the child has been left out of the Will completely. Legal rights claims can be very significant in value depending on the size of the estate. They also last for a long time - a child has 20 years from the date of death of the parent to claim or discharge legal rights, whatever age they are. In the case of a child who is minor at the date of death, this time limit does not commence until they reach the age of 18 years.
The law has determined that a child’s claim for Legal Rights amounts to one third of the worldwide net moveable estate, to be shared equally between siblings, where there is surviving spouse or civil partner, otherwise one half of the worldwide net moveable estate where there is no surviving spouse or civil partner.
Moveable estate comprises all assets of the deceased such as savings, jewellery and investments, other than heritable property or land. A surviving spouse or civil partner will also have the right to make a Legal Rights claim, which in their cases amount to a third share of the net moveable estate.
The Legal Rights of a child, and those surviving spouse or civil partner along with their prior rights on intestacy, require to be either formally claimed or formally discharged, and therefore an executor should not wind up estate without first taking every reasonable and prudent step to inquire about, locate and contact all the children of the deceased and the surviving spouse or civil partner, and advise them of their right to make Legal Rights claims.
If you believe you may have been entitled to claim Legal Rights from an estate of a deceased parent, even if they died many years ago, it is still well worth having inquiries made about your Legal Rights claim, if you did not receive your entitlement. There may well have been funds retained by the executor of the estate to meet this in the event of your making a later claim. The executor may have taken out an insurance policy known as a Bond of Caution, which would meet your claim for Legal Rights if insufficient funds have been retained by the executor.
When claiming your Legal Rights you are entitled to receive from the executor a break-down with details of the total net estate, and a calculation of how your Legal Rights have been calculated and divided. There are certain legitimate liabilities of the estate, such as the expenses of the estate management, fees and funeral expenses and inheritance tax that fall to be deducted before the Legal Rights shares are calculated.
If there is more than one child and lifetime gifts to the one or more of the children have been paid out by the deceased, these gifts are notionally added back to the net moveable estate, when Legal Rights claims are calculated and divided which is a process known as collation. This is to aim to ensure equal distribution among children. Legal Rights claims can be significant, depending on the value of the estate, and at times they can be complex to calculate.
Our trusted private client solicitors can provide you with expert legal advice and will assist you with all aspects of your Legal Rights claim, and independently verify that your share has been correctly calculated so that you receive your full entitlement. We can provide comprehensive advise on all other aspects of wills, executries and estate administration, powers of attorney, guardianships and advance directives. We are currently offering initial appointments by telephone or video technology and shall be happy to assist you.
We are proud to state that as a company we have been committed over many years to supporting our charitable foundations, and have participated annually to the Will Aid scheme, raising thousands of pounds for good causes while helping clients.
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