claim what I am entitled to from an estate
If you have been left out of a parent’s will in Scotland, you may have a claim without challenging the will at all. It is called legal rights, and it is the most valuable thing most people do not know about Scots law.
The short version
In Scotland a surviving spouse or civil partner, and the children, are entitled to a share of the deceased’s moveable estate — broadly everything other than land and buildings. This applies whatever the will says. It is not a challenge to the will and it does not require anybody to have done anything wrong.
What legal rights are
A fixed entitlement arising automatically on death. A will can leave the house and the whole estate to one person, and a child left nothing can still claim their share of the moveable property.
The share depends on who survives — whether there is a spouse as well as children changes the fractions. Because the calculation depends on the exact family circumstances and on what the estate consists of, it should be worked out on the actual figures rather than assumed.
Moveable and heritable — the distinction that decides everything
That distinction explains a great deal of Scottish estate planning, and a great deal of family disappointment. An estate consisting almost entirely of a house leaves very little for legal rights to attach to.
You have to choose
You cannot both take a legacy under the will and claim legal rights. If the will leaves you something, you elect between the two, and you should not decide until you know the value of each.
An executor should give you the information you need to make that choice. If one is not forthcoming, that is a reason to take advice.
How to claim
Tell the executor in writing that you claim your legal rights. Do it early — an executor who distributes the estate without dealing with a known claim may become personally liable, and reminding them of that tends to concentrate the mind.
Executors: do not distribute without dealing with this
If you are winding up an estate and there is a spouse or a child who has been left out, legal rights must be addressed before you distribute. Getting it wrong can mean paying twice out of your own pocket.
If you were not married to them
Cohabitants have no legal rights. They have a separate and much more limited claim under the Family Law (Scotland) Act 2006, and it must be raised within six months of the death. That deadline is absolute and it is missed regularly. If this is your situation, take advice immediately rather than after the funeral.
A note on this page
This is general information about how the law works in Scotland. It is not advice about your situation and it cannot be, because we do not know your circumstances. Nothing here should be relied on as a substitute for speaking to a solicitor about your own case.
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