Liferent 5 December 2022 at 10:39AM in Deaths, funerals & probate 14 replies 729 views

john110375

Hi, can someone please explain liferent and how it works. My mother has died in Scotland and my stepfather has liferent. I don't know how it works with regards to winding up her estate.

MikeJXE

You could try here https://www.legislation.gov.uk/asp/2016/7/notes/division/3/1/7

john110375

I'm confused, do I have to value the house now in todays prices but not actually be able to sell the house for years to come?

Keep_pedalling

I believe this is the Scottish equivalent to an immediate post death interest trust in England, a method of protecting both your inheritance and your step father’s security, in which case no you cannot sell the house until you step father dies or moves out. 

Scottish inheritance law is somewhat complicated so you really should consult a Scottish solicitor if you are in any doubt about how to proceed.

buddy9

Liferent is the Scottish equivalent of a Life Interest trust. The terms of the will are important as to how this will operate but stepfather likely has the right to continue to live in the house without ownership until death (or as specified in the will). Possession of the property (the fee) would then pass to the fiar (as specified in the will) on termination of the liferent.

The title needs confirmed to and the deed needs recorded in the land register with the subjects burdened by a liferent.

Assistance from a Scottish solicitor who deals in this field is desirable.

john110375

What happens with regards to the upkeep of the property? There is a large garden with trees and a lot of plants that needs tended to, who is responsible for that? Should I have a key? 

user1977

john110375 said:

What happens with regards to the upkeep of the property? There is a large garden with trees and a lot of plants that needs tended to, who is responsible for that? Should I have a key? 

Assuming nothing else has been agreed/specified, the liferenter is responsible for maintenance of the property. So no obligation for you to do that, and no need/right for you to have a key.

john110375

'The title needs confirmed to and the deed needs recorded in the land register with the subjects burdened by a liferent.'

What does that mean please? 

How do I ensure that the property and my mother's contents are insured and being looked after?

Marcon

buddy9 said:

Liferent is the Scottish equivalent of a Life Interest trust. The terms of the will are important as to how this will operate but stepfather likely has the right to continue to live in the house without ownership until death (or as specified in the will). Possession of the property (the fee) would then pass to the fiar (as specified in the will) on termination of the liferent.

The title needs confirmed to and the deed needs recorded in the land register with the subjects burdened by a liferent.

Assistance from a Scottish solicitor who deals in this field is desirable.

Depends if it is a 'proper' or an 'improper' liferent. 

In proper liferents, the liferenter has a direct interest in the land and that interest is registered against the property. 

Improper liferents (also known as Interest in Possession Trusts) are not registrable. The liferenter enjoys the benefit of the property in question by way of a trust. 

Advice from a solicitor with experience of Scots law who has had sight of the will isn't just desirable, it's essential. 

john110375

The will says that we are trustees if that helps?

buddy9

Proper liferents are uncommon.

If the will was professionally written, this is likely a liferent trust where the liferenter (stepfather) by way of a trust, is allowed to live in the house without ownership. At the termination of the liferent, ownership is passed by the trustees to the beneficiary. The will may contain provisions regarding powers of trustees, use of funds, maintenance of property, termination of liferent etc.

The trustees/executors will require to apply for a Grant of Confirmation for the estate and thereafter complete title in respect of the house.

In line with what others have said, you should engage a Scottish solicitor with experience in this type of work.

(A liferenter can renounce their right (if they have capacity) and might do so for payment.)