Even if you are not named in a Will you may be able to make a claim under a doctrine called “legal rights”.
The range of those who can claim
legal rights is restricted to:-
- A Spouse — this also includes an estranged or separated spouse unless there is in place a valid separation
- agreement in terms of which both spouses on separation have waived their respective entitlements to claim legal rights from the estate of the other.
- Children — this includes both adopted and illegitimate children.
- Grandchildren – but only if their parent has predeceased the maker of the Will.
How are legal rights calculated?
Legal rights can only be claimed against the net moveable estate valued at the date of death of the maker of the Will. The moveable estate is effectively anything which is not land and buildings. It includes cash deposits, the value of stocks and shares, insurance policies, furnishings, jewellery and personal effects, cars etc. (note this list is not exhaustive). The moveable estate is valued at the date of death. Debts, including funeral expenses are deducted from this valuation to give the net moveable estate of the deceased.
Where the deceased is survived by a spouse and children, their respective entitlements are as follows:-
- The spouse is entitled to claim one third of the net moveable estate.
- The children or the children of their children (where a child has died before the deceased) are entitled to claim one third of the net moveable estate between them.
Where the deceased is survived by children only, their respective entitlement is as follows:-
- The children or the children of their children (where a child has died before the deceased) are entitled to claim a half of the net moveable estate between them.
Can a beneficiary claim both legal rights and take his entitlement under the Will?
No. If they claim the benefit left under the Will, they give up their legal rights. Conversely, if they claim their legal rights, they give up any benefit left to them under the Will.
How long do the rights last?
20 years from the date of the deceased’s death unless waived or discharged earlier
Does the entitlement to legal rights earn interest?
Yes, but there is no set rate. Speak to Probate Scotland to make sure you get your full entitlement.
Are potential claimants obliged to claim legal rights?
There is no obligation to claim legal rights.