HM Insights

Who Can Inherit What? – Scottish Government Response to Succession Reform

The Scottish Government has responded to a consultation that was carried out into reform of succession law in Scotland. This blog examines some of the key responses from the Scottish Government to proposals made in the consultation.

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When there is no Will (Intestacy)

A significant proposal is change to the intestacy rules i.e where a person dies without a valid Will.

The current intestacy rules were criticised for their complexity. Currently, a surviving spouse or civil partner has a right to the home in which they are living, furniture and cash (up to certain limits). A surviving spouse/civil partner also has a claim to a share of the deceased's net moveable estate (cash, shares, jewellery etc) and the share which can be claimed depends on whether the deceased has children (or grandchildren if a child had predeceased), who will also have a claim. If there are remaining assets, these will pass to any children or to remoter relatives to the exclusion of the spouse/civil partner.

It is proposed that the law should be simplified when there is no Will. Under the Scottish Government's proposals, a spouse/civil partner would inherit the whole estate if there are no children and conversely, if there is no spouse/civil partner, children would inherit the whole estate.

Despite this proposed simplification, we would recommend that advice is sought regarding putting in place a Will as this will save time and cost after your death.

There were mixed views from the public consultation on how a deceased person's assets should be split when there is a surviving spouse/civil partner and children. The Scottish Law Commission proposed that the spouse/civil partner should receive a suggested threshold sum of £300,000 and the remainder should be divided into two parts; one part for the spouse/civil partner and the other part to be split among the children. Given, the lack of consensus among the respondents to the consultation, there will be a further consultation on reform.

When there is a Will (Testate)

Currently, where there is a Will, spouses/civil partners and children can claim from a deceased’s moveable estate as a protection from disinheritance. The Scottish Government does not intend to reform the law in this area. It was acknowledged that the current system has the benefit of striking a balance between an individual's ability to manage their affairs as they wish and limited protections for spouses/civil partners and children.

Heritable and Moveable Property

Currently, succession rights depend on the type of property and the law makes a distinction between heritable (land, property etc) and moveable property (as noted above, this includes cash, shares, jewellery etc). It was proposed that the current distinction between heritable and moveable property be abolished.

The public responses to the consultation were mixed, with concerns raised, in particular, in relation to agricultural businesses where it was argued that extending legal rights to heritable property might compromise the viability of those businesses.

As there will be further consultation on intestacy and no change to the rules when there is a Will, the Scottish Government will not be seeking to remove the distinction between the types of property.

Cohabitants

Cohabitants have no rights where the deceased left a Will. Again, in order to preserve an individual's ability to arrange their affairs as they please, the Scottish Government does not intend to reform this area. Where there is no Will, a cohabitant has a right to make a claim on their deceased cohabitant’s estate. The Scottish Government intends to increase the period during which a claim may be made from six months to 12 months from the date of death and will consult further on a fresh approach to cohabitants’ rights.

Get in touch

If you would like to know more about the changes to the law on succession, are considering making a Will, or would like any other assistance, please don’t hesitate to get in touch with our private client team.