Many people believe that Scottish law prevents parents from disinheriting their children. While there is some truth to that, the position is more complex. Whether your children have a right to inherit depends largely on whether you leave a Will, and on the balance between Prior Rights and Legal Rights in your estate. Understanding these rules is essential if you want to ensure your assets pass according to your wishes.
Understanding Your Children’s Legal Entitlements
In Scotland, what your children are entitled to depends on whether you leave a valid Will.
If you die without a Will (intestate), a set of statutory rules determines how your estate is divided between your spouse or civil partner and your children. Your spouse has what are known as Prior Rights, which include:
- The family home (up to £473,000)
- Furniture and household contents (up to £29,000)
- A cash sum — £50,000 if you have children, or £89,000 if you do not
If these Prior Rights use up the total value of your estate, then your children may receive nothing. However, if your estate exceeds these limits, your children will then have entitlement through Legal Rights.
Legal Rights and How They Work
Legal Rights apply to your moveable estate — assets such as money, savings, cars, and jewellery, but not land or buildings.
- Your spouse or civil partner is entitled to one-third of your moveable estate.
- Your children are entitled to another one-third, divided equally between them.
- The remaining third can be distributed according to your Will or, without one, under intestacy rules.
If there is no surviving spouse or civil partner, your children share half of the moveable estate between them. The other half can pass under the terms of your Will. If your estate is intestate (where there is no Will), it will be distributed in accordance with the law of succession.
Making a Will Gives You Control
When you make a Will, you can decide exactly how your heritable (land and property) and moveable assets are distributed. Prior Rights only apply if you die without a Will, so by preparing one you retain greater control over your estate.
However, you cannot completely exclude your children or spouse from your moveable estate. They retain their Legal Rights, which they may claim if they wish. Importantly, they must choose between any legacy left to them in your Will or their Legal Rights — they cannot take both.
Why It Pays to Plan Ahead
Relying on statutory inheritance rules may not produce the outcome you want. For example, assets inherited by your spouse through Prior Rights might never pass to your children. If you wish to ensure your children are properly provided for, the best solution is to make a well-considered Will.
At Pomphreys Solicitors, we can help you:
- Draft a Will that reflects your exact wishes
- Explain how Legal and Prior Rights could affect your estate
- Protect your family’s long-term interests through effective estate planning
Securing Your Family’s Future
Every family is different, and your estate plan should reflect that. Whether you wish to balance provision between your spouse and children or safeguard assets for future generations, clear legal advice makes all the difference.
Speak to Pomphreys Solicitors in Wishaw today to discuss making or updating your Will. Our experienced private client team will help you take control of your estate and secure peace of mind for your loved ones.
Call us today or contact us online to arrange an appointment with one of our Wills and Estate Planning solicitors.
This article is by Gordon Sommerville
Gordon Sommerville, Consultant Solicitor
Gordon Sommerville is a Consultant Solicitor with Pomphreys, having formerly been the Managing Partner.
He is also a Director with Enable Trustee Service Limited, and deals with financial planning for family members who have learning difficulties or disabilities, including the formation of Discretionary Trusts.
Tel: 01698 373 365
Email: ags@pomphreyslaw.com
