As the parent of a child – biological or adopted, you may choose to disinherit them from your estate, leaving them with none of your assets. However, if you are living in Scotland, you should be aware that there are unique features of Scottish Succession Law known as Legal Rights. These rights entitle children to claim a set portion of their deceased parent’s estate, and this is whether or not they have left a Will which excludes them.
After your spouse or civil partner, your children will have a legal right to claim on your estate. If your estate is exhausted by your spouse or civil partner, the children will be entitled to nothing. If not, your children are entitled to the following:
Ø 1/3rd of the moveable estate if there is a surviving spouse, split equally between however many children the deceased person has.
Ø ½ of the moveable estate if there is no surviving spouse, split equally between however many children the deceased person has.
Moveable estate essentially consists of all things that are not land or property, so it would be everything from jewellery to furniture to cash, investments, back accounts etc. Children do not have a legal right to any land or property.
It is important to note that a child’s entitlement is divided amongst however many children the deceased person has. For example, if the deceased person was married and had three children, each child would be entitled to 1/6th as the 1/3rd must be divided by the three children.
Do grandchildren have legal rights?
It can become a little more complex when it comes to grandchildren. There is legal standing that if the deceased person had a child who predeceased them and that child had children of their own (this would be the legal or biological grandchildren of the deceased person), these grandchildren could make a claim for their parents entitlement as their parent has passed away.
Do these rights stop me from writing certain people out of my Will?
In Scotland it is said that you cannot disinherit a spouse, civil partner or child. This is just because laws are there to protect those people’s rights. You can absolutely choose not to include certain people in your Will and no one can stop you from not including them, but just be aware they have a claim and legal grounds to contest.
Can my child still contest if they are named in my Will?
Your children or child can still claim against the estate even if they are left something in the Will however, they will not get their gift from the Will and their rights, they have to choose one or the other. Therefore, a person named in the Will would most likely only contest if their legal rights entitle them to more than what they have been gifted. Ultimately, you cannot defeat the claim by naming the person in the Will and gifting them something small.
How long does a child have to claim their rights?
Legal Rights can be claimed up to 20 years after the deceased person has passed away. If an executor has been unable to make contact with someone who holds these rights, or is unsure if they will claim, it is common practice to hold part of the estate they would be entitled to, just in case a claim is brought later on.
What happens to my will if my child claims and is successful?
If your child or children claims against an estate, their entitlement would be calculated, taken off of the estate and the remaining estate would be divided in accordance with the Will.
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