Scottish Law Prior Rights etc

superbigal36

Hello hopefully in the correct section and there is a Scottish expert for this scenario

I will outline the scenario and my understanding of the law.
First the not too complicated part (I believe)

Mrs X died without leaving a will
Mrs X is survived by Mr X (20 years separated but not divorced) and 3 Children.

Mrs X owns 100% property A (that was signed over legally to her from Mr X 20 years ago.)

My understanding of Prior Rights:
Mr X is the widower and thus on the face of it has prior rights. However he does not live in property A, so does not "qualify" as the survivor. Therefore he has no prior rights.
Then property A would become part of "the remainder of the estate" and the 3 Children inherit the house (33.33% each), as the intestate estate devolves according to legal rules.
Basically "The Children" are at the top of lists to inherit, and well before the surviving spouse.

So if I am correct so far then please read on.

Mr X lives in property B. Property B deeds are still in joint names for Mr X & Mrs X
Mr X qualifies as "the survivor" as he lives in property B. Hence under prior rights Mr X claims the house (Value is below £473000 etc).

Again hopefully correct and not too complex.
Heres the fly in the ointment.

Mr X also rents out property C to a tenant. It appears that property C deeds are also still in joint names for Mr X & Mrs X. (Mrs X would not have realised and never got half rent etc. Not worried about this part).
Following the same rules/pattern it would appear that property C would also not go to Mr X under prior rights, but that 50% of property C would end up being split to the 3 children !!

Can anyone tell me if this all looks correct ?
There is no in family fighting going on here but rather just trying to ensure all is correct in my head before engaging legal help.

superbigal36

Even if someone could just comment on the 1st house please ?

This is the extract I take from the succession Scotland Act 1964

4.10 Section 8(4) provides that the prior right to the dwelling house applies only where the surviving spouse has been 'ordinarily resident' in the house at the death of the testator. Thus, if the deceased owned any house in which the surviving spouse had never lived, prior rights may not be claimed in relation to that house.

In the simple booklet "what to do after a death in Scotland" edition 11
A Widower has prior rights. We call someone with prior rights "the survivor".
If the person who died owned a house, and the survivor lived there,


There must be loads of scenarios in Scotland where no wills have been left and couples have been separated long term and not divorced.
No comments anyone ?

Savvy_Sue

If it helps, my understanding of the bits you've posted agrees with yours, but I'm no expert in any kind of law, English or Scottish.

However, you're right to get legal help, especially if there is ANY chance of Mr X claiming more than what you understand he is entitled to. Even if he isn't going to do that, I'd want that clarity.

unforeseen

If properties B & C are in joint names then it all depends on the type of joint names.

If joint tenants (Joint ownership with survivorship) then the houses become Mr X's without being part of Mrs X's estate.

cr1mson

How are the deeds written on Property C? Mine and my husband's property which is in Scotland has a survivorship clause in the deeds which means that the property automatically vests to the survivor on the death of one of us. You need to check if one is in place.

superbigal36

I have yet to lay eyes on the Deeds as they are with Mr X
Hopefully get to see them shortly and look for the pointers from above.

The What kind of joint names has kind of thrown me. Thanks I will research (Or if you have a quick reference example).
I assume that is not just an English thing ?
I only ask because lots of property related "things" are different up here !

unforeseen

Starter for you

https://www.savvywoman.co.uk/526/buying-a-property-together-what-the-law-says-if-you-live-in-scotland/

Savvy_Sue

superbigal36 wrote: »

I have yet to lay eyes on the Deeds as they are with Mr X
Hopefully get to see them shortly and look for the pointers from above.

It looks as if one of the links from that very helpful article in unforeseen's post will take you to somewhere you can check the ownership. https://www.ros.gov.uk/

IF it's anything like the Land Registry south of the border, for a very modest fee you can have your own copy of the deeds.

cr1mson

superbigal36 wrote: »

I have yet to lay eyes on the Deeds as they are with Mr X
Hopefully get to see them shortly and look for the pointers from above.

The What kind of joint names has kind of thrown me. Thanks I will research (Or if you have a quick reference example).
I assume that is not just an English thing ?
I only ask because lots of property related "things" are different up here !

.

As I said we are in Scotland and our property has a survivorship clause.