Inheritance Scotland - Legal Rights for Children

Merchandiser2367

Hi Everyone, Hope someone can help with this.

My mother recently died, she had a will and has not left her estate to my sister or I.

But I have been made aware by a solicitor that due to 'legal rights' in Scotland, we are entitled to 1/4 of the moveable estate.

Does anyone know how to claim this without paying for an expensive solicitor or is the solicitor the only way to go to ensure everything is done correctly?

Thanks

rpc

Merchandiser2367 wrote: »

But I have been made aware by a solicitor that due to 'legal rights' in Scotland, we are entitled to 1/4 of the moveable estate.

It will be either one half or one third depending on whether there is a surviving spouse or civil partner.

Does anyone know how to claim this without paying for an expensive solicitor or is the solicitor the only way to go to ensure everything is done correctly?

See http://www.step.org/legal-rights-lowdown

It depends whether the executor wishes to be cooperative or not. The executor has a duty to inform anyone the believe to have legal rights of those rights.

If you claim those legal rights, it is treated as a debt against the estate - i.e. paid out before beneficiaries of the will.

If the executor is being cooperative and objective, you should be able to do it with a letter or two.

If the executor is not playing ball (perhaps they are sole beneficiary) then you may need a solicitor and ultimately court to enforce your claim. As it is with any civil claim.

No need to rush. You have 20 years to claim the legal rights. That's why it is in the executors best interest to be objective - if they pay out the estate and you pop up in 10 years they can find themselves with a bill to pay from their own pocket.

I would start with a phone call to the executor if possible. If the executor knows you exist, they should be initiating contact or at least expecting it.

kayl

The reference to the quarter share is the amount each of you can claim. If the executor is using a solicitor to wind up the estate, they should contact you about your claim, and ask you to confirm whether you want to clim it or to discharge your legal rights.

Gavin83

Is this really a law? Thats possibly the most ridiculous law I've ever heard of. Whats the point of having a will if some law is just going to overrule it anyway?

To the OP, I'm curious. Do you have any ideas as to why your mother left you and your sister out of her will? Are you estranged?

kayl

Under Scots law, your children regardless of their age, are entitled to share a half share of your moveable estate if you leave a spouse, and a one half share if not, on the basis that you can never completely disinherit them - though there are suggestions that this law ( which is hundreds of years old) may be amended at some point in the future

getmore4less

It is not uncommon for people to gift their assets prior to death to get round this.

rpc

kayl wrote: »

If the executor is using a solicitor to wind up the estate, they should contact you about your claim, and ask you to confirm whether you want to clim it or to discharge your legal rights.

The executor should be doing that whether or not they are instructing a solicitor.

If an executor does not get legal rights discharged or paid out, they hang over them for the next 20 years. Should the estate be distributed before the rights time out, the executor could find themselves personally liable.

Is this really a law? Thats possibly the most ridiculous law I've ever heard of. Whats the point of having a will if some law is just going to overrule it anyway?

All wills are limited by law.

Anyone who writes a will under Scots law should account for these legal rights when it is written, unless they hope that the spouse/offspring will not claim them.

A husband being able to disinherit his wife forcing her to kick off an expensive court case claiming financial dependency so that she can keep her head financially above water (the English scenario) seems equally ridiculous.

If you really wish to disinherit someone, there are workarounds like getmore4less says.

onlyroz

Gavin83 wrote: »

To the OP, I'm curious. Do you have any ideas as to why your mother left you and your sister out of her will? Are you estranged?

Perhaps it was done because the mother knew the children would be accommodated for by this law.

Merchandiser2367

kayl wrote: »

The reference to the quarter share is the amount each of you can claim. If the executor is using a solicitor to wind up the estate, they should contact you about your claim, and ask you to confirm whether you want to clim it or to discharge your legal rights.

Thanks for all your replies, very helpful.

The executor's solictor has written to us both with regards to the legal rights and that we are entitled to 1/4 of the moveable estate.

Is it a simple matter of replying directly to this solicitor stating we wish to claim this and then thye would respond with next steps?

Thanks Again

gettingtheresometime

Gavin83 wrote: »

Is this really a law? Thats possibly the most ridiculous law I've ever heard of. Whats the point of having a will if some law is just going to overrule it anyway?

To the OP, I'm curious. Do you have any ideas as to why your mother left you and your sister out of her will? Are you estranged?

I'm so glad that you've written this - its everything I was thinking.

Many people disinherit their children for all sorts of reasons and to be told you have to leave them a quarter of your moveable estate would have me selling everything off asap!

Mojisola

Gavin83 wrote: »

Is this really a law? Thats possibly the most ridiculous law I've ever heard of. Whats the point of having a will if some law is just going to overrule it anyway?

England and Wales are unusual in allowing you to leave your estate to anyone you want. Many countries have laws about it, eg.
http://www.french-property.com/guides/france/finance-taxation/inheritance/rights/