Legal Rights in Scotland

geoiain

I would be grateful if anyone could clear up something for me.

My father died recently. He left a will and I was named as the sole beneficiary. However, my brother, who died in 2004, had 2 children from 2 separate relationships, i.e. my father's grandchildren.

I understand that IF my father had NOT left a will, then under Legal Rights in Scotland they would would have been entitled to share half of the moveable estate.

However, all the iformation I have read is extremely vague as to what the situation is regarding their legal rights, in view of the fact that my father left a will.

Can anyone help? Thank you in advance.

GlynD

If your father had not left a will then there is a form of probate called "discovery" which is carried out by the procurator fiscal, after which the proceeds of the estate are divided amongst his surviving relatives but that usually only means his immediate relatives i.e. siblings and offspring. Given that you have a will then the executor(s) of the estate are bound to distribute the proceeds by the means specified unless there is a legal challenge which puts the process into abeyance.

That is my understanding of the situation but I am not a lawyer and I would strongly advise you to seek a consultation before allowing the executors to proceed.

EDIT: As an afterthought. Had your brother survived then his children would have been entitled to a division of his portion of the estate. That doesn't seem to be an issue here. The only legal argument would be that, had your brother survived, he would have been named in the will?

geoiain

Thank you so much for your quick reply. I should have made a few things clear. I am actually the co-executor along with the lawyer who is handling the estate.

He has told me that I am entitled to half of the moveable estate (property does not come into the calculation). He then said that of the remaining half, I am entitled to half and the two grandchildren are entitled to share the other half, i.e. 1/8 each. (If there hadn't been a will they would have been entitled to a 1/4 of the total amount each, according to information on the Scotland government website.) However all it says on the website is that that split only applies if there is no will, but does not go on to say how it works if there is a will.

I'm sure that the lawyer will be correct, I guess i was just seeking a 3rd party confirmation or otherwise.

zzzLazyDaisy

Deleted.

Apologies I had misread the OP.

Sorry OP, in England the estate would be distributed according to the will - which means as sole beneficiary you would get everything. This would only differ if a challenge was made to the will by/on behalf of the children, and even then they would only be successful if they could show that your father was supporting the children in some way during his lifetime.

But as you live in Scotland that is irrelevant and not much help to you as the law may well be different.

I suggest that you seek legal advice to set your mind at rest.

GlynD

Whilst not doubitng your lawyer I would seek a second opinion if I had a mind to cut your nephews out of the will - if that's what you want.

daska

Here you go. http://www.makeawill.co.uk/scottish-wills.htm

In Scotland, however the deceased’s spouse or civil partner has, what is known as, “prior rights” and spouses, civil partners, children, grandchildren and great-grandchildren have, what is known, as “legal rights”.

The consequence of these rights is that it is very difficult for a Scottish testator to disinherit their spouses, civil partners and children and sometimes even their grandchildren and great-grandchildren. Any attempt to exclude such family members from inheriting a Scottish testator’s estate will be invalid.

[...]

The “legal rights” of a spouse, civil partner, child or grandchild or great-grandchild

Surviving spouses, civil partners and children of the deceased have legal rights to the deceased’s “moveable estate”.

The term “moveable estate” is used to describe assets which can be physically moved such as money, cars, furniture and shares. Assets such as land and buildings, which cannot be moved, are referred to as the deceased’s “heritable estate”.

If the deceased left children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one third of the moveable estate. If the deceased did not leave any children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one half of the moveable estate.

If the deceased left children and a spouse or civil partner, then his or her children will inherit one third of the moveable estate between them. If, therefore, the deceased left 2 children they will each inherit one sixth of the moveable estate.
If the deceased did not leave a spouse or civil partner, then his or her children will inherit one half of the moveable estate between them.

Grandchildren and great-grandchildren only have legal rights if their own parents die before the deceased. Where that happens they will inherit the share, which their parent would have been entitled to.

geoiain

Thank you very much for that link. It does seem to contradict what the lawyer told me previously! The only thing I way say is that reading the next link on the website, it would appear that the distribution would be exactly the same if my father hadn't left a will, which is puzzling.

GlynD

That's feudal law for you. It's often confused with the English system because that's what see in the media most.

zzzLazyDaisy

''If the deceased left children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one third of the moveable estate. If the deceased did not leave any children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one half of the moveable estate.

If the deceased left children and a spouse or civil partner, then his or her children will inherit one third of the moveable estate between them. If, therefore, the deceased left 2 children they will each inherit one sixth of the moveable estate.
If the deceased did not leave a spouse or civil partner, then his or her children will inherit one half of the moveable estate between them''

I think I am being thick....

If the deceased leaves a spouse (who gets one half) and two child (who get one third divided between them) what happens to the other bit (my maths isn't good enough to work out what the whole less (1/2 plus 1/3) is, but you know what I mean....

sleepless_saver

geoiain wrote: »

He has told me that I am entitled to half of the moveable estate (property does not come into the calculation). He then said that of the remaining half, I am entitled to half and the two grandchildren are entitled to share the other half, i.e. 1/8 each. (If there hadn't been a will they would have been entitled to a 1/4 of the total amount each, according to information on the Scotland government website.) However all it says on the website is that that split only applies if there is no will, but does not go on to say how it works if there is a will.

The Scottish government website does go on to say what happens if there is a will. If you have "legal rights" as well as being a beneficiary under the will, you have to choose which one you want to benefit from, you can't have both.

"Where a will has been left, the prior rights described in note 1 above do not apply. However, the legal rights described in note 2 may be claimed by a surviving spouse or civil partner or a child, although any person who has rights under a will as well as legal rights has to choose between them; he or she cannot have both. Thus, for example, if a man dies leaving his widow a bequest of £2,000 in his will, she can choose to accept it,
or alternatively claim the one-third or one-half of his moveable estate which is her legal right."

anguk

zzzLazyDaisy wrote: »

''If the deceased left children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one third of the moveable estate. If the deceased did not leave any children, grandchildren or great-grandchildren then the surviving spouse or civil partner will inherit one half of the moveable estate.

If the deceased left children and a spouse or civil partner, then his or her children will inherit one third of the moveable estate between them. If, therefore, the deceased left 2 children they will each inherit one sixth of the moveable estate.
If the deceased did not leave a spouse or civil partner, then his or her children will inherit one half of the moveable estate between them''

I think I am being thick....

If the deceased leaves a spouse (who gets one half) and two child (who get one third divided between them) what happens to the other bit (my maths isn't good enough to work out what the whole less (1/2 plus 1/3) is, but you know what I mean....

It does sound very confusing. I'm guessing the other bit goes to whoever is actually named in the will.

So, assuming the OP's father didn't have a spouse, it sounds to me like the moveable estate would be split into two, one half would then be split in two, the OP would get one part and the other part would be split between the grandchildren. So the OP would get 1/4 and the two grandchildren would get 1/8 each.

I'm guessing the other half of the moveable estate would go to the beneficiary of the will (which would be the OP)? So in total the OP would get 3/4 of the moveable estate and the two grandchildren 1/8 each. And if there is a house the OP would get that as beneficiary because a house isn't moveable estate?

It sounds like the OP's lawyer has given them the correct information, the grandchildren are entitled to 1/8 of the moveable estate.

It actually reminds me of my MIL's will, she had 3 children and everything was to be split equally between the three. But if any of her children died before her then their share would go to their children, so for example if my husband had died before his mother our children would get his share. I personally think this is the fairest way and it's what I will stipulate in my will once grandchildren come along.