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Changes to Scottish Inheritance and Succession Laws, and What Happens if There is No Will

Changes to Scottish Inheritance and Succession Laws and What Happens if There is No Will 2

When it comes to the transfer of property and assets after someone's passing, succession law plays a crucial role in determining how the estate is distributed. In Scotland, recent changes to succession laws have brought significant updates and implications for various relationships, particularly what happens when a person dies without leaving a valid will – a scenario known as intestacy.

Understanding the repercussions of these new regulations is vital for both individuals who anticipate inheriting an estate and those looking to plan for the future.

In this article, we will delve into the key aspects of the amended succession law in Scotland, focusing on what occurs in cases of intestacy and how these changes affect different parties involved, including alterations to the right to inherit, the removal of the right to be appointed as an Executor, and an extension of the time period within which cohabitants can make a claim on an Estate.

What is the Trusts and Succession (Scotland) Act?

The Trusts and Succession (Scotland) Act 2024 represents a significant milestone in

Scottish law, particularly concerning the intricate realm of Succession Law. Central to the Act is the reform of Succession law, which governs how a person’s estate is distributed upon their death.

For over a century, the Trusts (Scotland) Act 1921 has served as the primary legislation governing trusts established under Scots law, however it has undergone several amendments and has become difficult to understand and apply to modern day scenarios.

The Act is a piece of legislation that aims to reform and modernise the laws governing trusts and succession in Scotland, and seeks to:

  • address the complexities and challenges associated with the existing law on trusts and succession

  • simplify trust regulations

  • enhance the administration and management of trusts

  • clarifying the rules of inheritance and who has the right to inherit and in what order

  • reflect contemporary societal norms

Rights of Spouses and Civil Partners

Typically if someone dies without a Will in Scotland, the surviving spouse or civil partner has an entitlement, by way of what are called ‘prior rights’, to the dwelling house, furnishings, and a cash right, all to a certain value. This is known as the ‘Free Estate’ (The Succession (Scotland) Act 1964).

However, if the deceased has surviving parents and siblings, then they could trump the surviving spouse or civil partner.

But with the The Trusts and Succession (Scotland) Act 2024, the following will apply for deaths after 30 April 2024:

If an individual dies leaving solely a spouse or civil partner and no surviving children or grandchildren, then the surviving spouse or civil partner will inherit the Free Estate.

Children or grandchildren will take preference to spouses where they are surviving but the preference for siblings and parents will be removed. The changes will be welcomed by many spouses or civil partners who have felt it unfair that the Estate has been partially inherited by parents and siblings of the deceased.

The recent changes in the law highlight the increased importance of having a will, especially for individuals in a second marriage. If you don't have a will, the new intestate legislation could result in your second spouse or civil partner inheriting most of your estate, potentially leaving your biological children unprotected.

Executors convicted of murder or culpable homicide

Prior to the The Trusts and Succession (Scotland) Act 2024, those convicted of murder or culpable homicide could still be an Executor of the person they have killed.

However, high profile cases of the murderer refusing to give up the role of Executor, such as in the murder of Carol-Anne Taggart, whose son was found guilty of her murder in 2014, prompted the Scottish Government to change this.

The new legislation allows for the removal of an Executor convicted of the murder or culpable homicide of the deceased, whether the killing and/or the conviction was abroad or in Scotland, and applies even before someone is convicted. Unlike most legislation, the terms of this provision apply retrospectively, i.e to deaths occurring before this Act comes into force.

Survivorship destinations

Essentially a survivorship destination means that where X and Y own a property and one of them dies, the Title will automatically transfer into the name of the surviving party.

The Succession (Scotland) Act 2016 amended the law to prevent ex spouses or ex civil

partners from acting as Executor and/or benefitting under the deceased’s Estate where they

had divorced but the deceased had not updated their Will.

The Trusts and Succession (Scotland) Act 2024 has made amendments to the Succession (Scotland) Act 2016, providing additional clarification on how situations like the one mentioned are addressed. However, it is strongly recommended to update your will promptly whenever significant life changes occur, such as separation or divorce, despite these reforms offering some assistance.

Whether you are instructing the drafting of your first Will or looking to refresh your instructions, our experienced team can listen, advise and assist you. Get in touch with our expert private client solicitors here.

Right of Cohabitants

The Family Law (Scotland) Act 2006 provided some protection for cohabitants, with cohabitants able to apply to the court for financial provision where the deceased died without a Will within 6 months of date of death. This is a hard and fast rule, which if missed cannot be rectified.

As of April 2024, The Trusts and Succession (Scotland) Act 2024 will amend this to say that a cohabitant can apply to the court within 12 months of date of death.

The Trusts and Succession (Scotland) Act 2024 introduces changes that may seem esoteric and only applicable to specific circumstances, but they ultimately have a significant impact on an individual's inheritance rights.

It is important to note that while the Act is in effect, the process of distributing assets can still be lengthy and stressful for your loved ones if you were to pass without a Will. Therefore, the best course of action is to ensure you have a will in place, providing clear instructions for the distribution of your estate and minimising any potential complications.

For any further advice, or to make or amend a Will, please contact one of our specialist Private Client Solicitors, or get in touch via this form.

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