Estate query relating to Scottish law and disinherited son

iamlindypops

Hi,

Hoping someone can help again.  I am executor for my mum's estate, I have a brother mum removed from her will as there was lots of issues between them.

I am led to believe that you cannot disinherit your children in Scotland and I have to give my brother a portion of her estate.  If there are three children who have survived mum, is my brother to receive one third and how do I administer it?

I have also been told that if he doesn't want to accept, he has 20 years that it will be held for, my nephews (two) also don't want anything from mum's estate.

Do I need a solicitor to send out letters to their addresses informing them of their inheritance?  If they don't want to receive and I put in a bank account, do they get the interest? How do I make sure I have followed the law?

Thank You in advance

Linda 🙏🏻

elsien

I think it depends on what the estate consists of - there is no right to land or property. 

But if you’re not sure this, this may be one to get proper legal advice on anyway.

Flugelhorn

I thought that the right of the child was only to moveable assets - what does the estate consist of?

"Legal rights include the worldwide net moveable estate only of the deceased and includes cash, shareholdings, personal effects and furniture, cars etc. Legal rights does not include heritable estate such as land and buildings. A Legal rights claim can be made only against the moveable estate of the deceased. Heritable property is not currently included in the legal rights calculation however the Scottish Law Commission may look to change this in the future."

iamlindypops

Thank you elsien and Flugelhorn, it is only moveable assets, i.e. what she had in her bank account, nothing more

elsien

The information says “up to“ 20 years to claim. Wondering if there’s a way they can sign to say no, I don’t want it. I’m not going change my mind Which means that you don’t have to look after it for the next 20 years?
No clue if that’s possible, just a passing thought.  

Flugelhorn

This is from the Gazette:

"

What happens if someone does not want to claim their legal rights?

As previously mentioned, if the deceased has left a valid will, legal rights will apply automatically. However, it is possible for an individual with a claim to formally discharge their legal rights. This can be done before or after death, but the effect of doing so is different:

• if it is done before the death, the person is treated as pre-deceasing the testator (the person who made the will)
• if it is done after the death, the person is not treated as pre-deceasing the testator

Executors should provide all individuals with a legal rights claim, with a calculation of their legal rights and invite them to sign a formal discharge if they do not wish to claim their legal rights. If legal rights are being discharged, this should be done in writing and within two years of the date of death to ensure there are no adverse consequences for inheritance tax."

https://www.thegazette.co.uk/all-notices/content/103869

buddy9

If brother has no legacy in the will, he has an entitlement to a share of the legitim fund.

The legitim fund, where there is no surviving spouse, is 50% of the net moveable estate. For entitlement, the legitim fund is divided by the number of surviving children (and also any predeceasing children who themselves left issue).

So if there are three children (and no predeceased children who left issue), brother would have an entitlement to one sixth of the net moveable estate. 

If there are three surviving children and one predeceased who left issue, then brother would be entitled to one eigth of the net moveable estate. This would be the moveable estate once all expenses and liabilities have been accounted for.

Once renounced the 20 years period is irrelevant. If brother doesn’t want to accept, obtain a note from him confirming this. If the nephews are children of a predceased child, you should obtain a similar note from them to avoid future issues.

You do not need to use a solicitor.

iamlindypops

Thank you buddy9, my understanding now is that I have to provide my brother a sixth of mum's moveable estate once all expenses & liabilities have been paid.

I presume I will need to write to my brother to inform of his legal rights and ask if he wishes to renounce his rights, is there anywhere I can find a template letter with legal text to make the communication formal?

Thank you again

🙏🏻🙏🏻🙏🏻🙏🏻🙏🏻🙏🏻

ev51

IANAL but perhaps a DIY Discharge of Legal Rights letter could be worded something like:

I "Joe Bloggs" with reference to the estate of my late mother "Jane Bloggs" who died on "25th May 2024" hereby renounce and discharge for all time coming my legal right of legitim in said estate.  I declare this renunciation to be irrevocable.

The Discharge of Legal Rights letter should be dated, signed and witnessed.

People signing away their legal rights should also be told to seek independent legal advice if they are in any way unsure of what they are doing!

buddy9

iamlindypops said:

Thank you buddy9, my understanding now is that I have to provide my brother a sixth of mum's moveable estate once all expenses & liabilities have been paid.

I presume I will need to write to my brother to inform of his legal rights and ask if he wishes to renounce his rights, is there anywhere I can find a template letter with legal text to make the communication formal?

Thank you again

🙏🏻🙏🏻🙏🏻🙏🏻🙏🏻🙏🏻

It's 1/6th if no surviving spouse and three children. But where do the nephews come into this?

SiliconChip

I have to agree with @elsien that this is a case where proper legal advice would make sense rather than hoping that what you read on an online forum is correct, given that the full facts are not known to any of the posters. At the very least it would be worth getting a quote for advice from a solicitor to establish how much it would cost you (I'm unsure if this would be an allowable expense on the estate or a personal expense for the executor).