Part four of four in the “What Do I Do When Losing A Loved One?” Guide Series.
The Executor cannot distribute the estate until at least six months after the death, to ensure that all debts have been identified.
Distribution of assets under the Will
Where you have access to a Will, the assets are distributed by the Executor according to the deceased’s wishes. However, this is subject to the payment of Legal Rights. Legal Rights can still be claimed even if there is a Will in place.
Legal Rights ensure that the partner of the deceased (either a spouse or civil partner) can’t be disinherited. The same applies to their children. The law provides that they’re entitled to certain Legal Rights from the moveable estate, including most of the possessions but not property or land. Their partner will be entitled to a third of the moveable estate if there are other descendants (children or grandchildren). Descendants include adopted children but not stepchildren. If there are no descendants, then the surviving partner will be entitled to half of the moveable estate.
Children will be entitled to a third of the estate if there is a surviving partner, or half of the moveable estate if there’s no surviving partner. Each child is entitled to an equal share, and if they predecease the person who wrote the Will, then their children are entitled to their share.
If there is a Will in place, the individual cannot claim both Legal Rights and their entitlement in terms of the Will.
Legal Rights can be claimed from the estate at any time within 20 years from the date of death. The Executor is obliged to advise all who might have a claim to Legal Rights of their entitlement.
Distribution of assets when there is no Will.
Where there’s no Will, then the estate will be distributed following the laws of succession. This means that Prior Rights are applied to the estate in the first instance. After that, Legal Rights are used to distribute the estate. Finally, the remainder of the estate (if any) is distributed in terms of section 2 of the Succession (Scotland) Act 1964.
Prior Rights apply only to the surviving spouse or civil partner. If the person who died owned a house, and the survivor lived there, he or she is entitled to the house and the furnishings and furniture of that house, subject to certain limits:
- The house, as long as its value is less than £473,000.
- The furnishings and furniture up to the value of £29,000.
They are also entitled to additional funds from the remainder of the estate. The amount depends on whether there are any other descendants. If there are then the surviving spouse is entitled to £50,000. If there are no descendants, then that entitlement increases to £89,000.
If the Prior Rights have not exhausted the estate assets, their partner and their descendants would be entitled to their Legal Rights.
Any estate remaining is distributed in terms of section 2 of the Succession (Scotland) Act 1964. This is a list of potential beneficiaries, and the closest “class” of beneficiary is entitled to the estate remaining after payment of any Prior Rights and Legal Rights. This list includes children, parents, siblings, and becomes more remote until there is a member of the deceased’s family who can inherit the estate.
For more information on managing the estate of a loved one, please contact our By Your Side team. We provide a wide variety of ways to contact the team and our opening hours span more than the usual 9-5 – so you can get in touch at a time and in a way that suits you.