Rights of inheritance

If there is a valid will

In Scotland, unlike England and Wales:

  • Widowed spouses, civil partners, children and other descendants have legal right to a fixed share of moveable property (i.e. excluding land and buildings) whatever the will states.
  • You can leave your ‘heritable estate’ (land and buildings) to anyone, but if it has been bought in joint names it is likely that you hold the property “jointly with the survivor”, so that when a spouse or partner dies the other receives the property irrespective of any will.
  • A will remains valid if you get married, register a civil partnership, or divorce or legally separate.
  • Estates valued at £30,000 or less are known as ‘small estates’. These can be dealt with simply with help from the Sheriff Clerk’s Officers. For larger estates you will need help from a solicitor. Further information can be accessed here

If there is no will or the will is invalid (intestacy)

Dying without a will is commonly referred to as ‘dying intestate’. However, even if a will has been made, if it is held to be invalid, the individual still dies intestate. A will may be invalid for a number of reasons:

  • If undue influence was brought to bear on the person making the will.
  • If any legal dependants have been left out.
  • If the witness is a beneficiary or family member or if the individual making the will was not of sound mind at the time.
  • If the deceased is divorced or was in a civil partnership which has been legally ended (but not in Scotland).

For fuller details of the situation throughout the UK access the hmrc website here. Other information of particular relevance to Scotland are given in the Scottish Government's 'Rights of Succession'

Non-Tax consequences of intestacy

The main consequence of dying intestate is that the law, and not the deceased, determines not only who inherits but the amounts of the inheritance. Where the deceased is survived by a spouse and children, only they inherit. This can have a number of disadvantages, for example;

  • in second marriages the wife takes the bulk of the deceased’s estate, thus depriving the children from the first marriage of most or all of their inheritance.
  • other members of the deceased’s family (e.g. parents, brothers, sisters) or charities will not inherit.
  • in Scotland children will receive their share of the estate - possibly a large sum of money; when guardianship ceases at the age of 16. By putting a will in place funds can be held by trustees to look after children’s interests.

Tax consequences of intestacy

Inheritance by children under rules of intestacy may result in inheritance tax being paid on their share of the estate rather than being transferred free of inheritance tax to the surviving spouse. Also, some assets in the deceased’s estate may qualify for favourable inheritance tax treatment (e.g. 100% business property relief), which is wasted if it is the surviving spouse who inherits.

Intestacy rules in Scotland

The surviving spouse or civil partner is entitled to “prior rights” of succession in a fully or partially intestate estate. Prior rights take precedence over all other rights and the spouse or civil partner is due both prior and legal rights from the intestate estate. Even where there are surviving children, the spouse or civil partner is entitled to:

  • The house up to the value of £473,000
  • Furniture up to the value of £27,000
  • Cash of up to £50,000 if there are surviving children, £89,000 if not

If the intestate estate is not enough to meet the prior rights of the surviving spouse or partner, they may be entitled to the whole of the estate. If you have children or other relatives or dependents you wish to inherit, it is therefore important to make a will. More information may be obtained from the hmrc.

Intestacy rules in England

The extent of claims of the surviving spouse depends on the value of the estate and whether or not the deceased has also left children or certain other relatives. Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. So, divorcees can’t inherit but partners who separated informally can still inherit under the rules of intestacy.

If there are surviving children, grandchildren or great grandchildren of the person who died and the estate is valued at more than £250,000, the partner will inherit:

  • all the personal property and belongings of the person who has died, and
  • the first £250,000 of the estate, and
  • a life interest in half of the remaining estate. This means that if you are entitled to the life interest, you cannot get rid of or spend that part of the estate but you can have the benefit of it during your lifetime. Children inherit the remainder of the estate in equal shares.

For estates valued at over £450,000 and where there are no children, other rules apply. See Advice Guide for more information.

Changing a will after death: Deeds of Variation

A Deed of Variation (or ‘Deed of Family Arrangement’) is a legal document that changes the distribution of assets under a will after death or which varies the distribution of the deceased’s estate when there was no will.

Deeds of Variation are used by those who inherit (other than children) to redirect their inheritance to others in order to minimise inheritance and/or capital gains tax. They are also used where beneficiaries wish to redress any imbalances, for example, where some one has been missed out of a will or where the financial needs of one beneficiary is greater than that of the other beneficiaries. If a Deed of Variation is made in an attempt to avoid paying care costs it is likely to be ineffective. 

A Deed of Variation can be made within two years of the deceased’s death as long as the following criteria are met:

  • all of the beneficiaries who are adversely affected by the deed of variation agree to it
  • there is no ‘reciprocation’ (no beneficiary being compensated for what they give up)
  • none of the assets to which the Deed of Variation relates are affected by a ‘gift with reservation of benefits’ (where a person gives property to another person but retains ‘enjoyment’ of the property)

All parties affected by the changes must agree and sign a Deed of Variation prepared by a solicitor.

Differences between Scottish wills and those in the rest of the UK

The terms will, executor and codicil are used both in Scotland and the rest of the UK, but there are important procedural differences:

Minimum ages

In Scotland a person can make a valid will at the age of 12. In England and Wales, however, the minimum age is 18 years unless they are a soldier in actual military service or a seaman. An executor must be at least 16 years old in Scotland, but 18 in England and Wales.Beneficiaries

In England and Wales a person can will his or her estate to whomever they wish. In Scotland, however the deceased’s spouse or civil partner has ‘prior rights’; and spouses, civil partners, children, grandchildren and great-grandchildren have ‘legal rights’. It is therefore very difficult to exclude family members from inheriting an estate in Scotland.

Signatories

In Scotland the person making the will must sign each page, whereas in England and Wales, provided that the pages are stapled or otherwise attached, only one page requires signature. In Scotland, only one witness is required, two being required in England and Wales.

Marriage or civil partnership automatically revokes a will in England and Wales (unless the will was made in contemplation of the marriage or civil partnership), but not so in Scotland. A revoked will is invalid and the deceased’s estate is distributed in accordance with the rules of intestacy.

Divorce and dissolution of a civil partnership

In Scotland a will is not revoked by divorce or dissolution of a civil partnership, so any bequests made to an ex-spouse or ex-civil partner will normally remain valid. However in England and Wales when a ‘Decree Absolute’ or ‘Decree of Dissolution’  (court orders that respectively finalise a divorce or terminate a civil partnership) are made, any provisions contained in a will which benefit the ex-spouse or ex-civil partner, or which appoint the ex-spouse or ex-civil partner as an executor or trustee, are automatically revoked.