Legal Rights of Children to Share in an Estate on the Death of a Parent
In Scotland, when a person dies, that person’s children can make a claim to share in the deceased’s assets whether or not the child is named in the deceased’s Will.
The claim can only be made against net moveable estate i.e. after payment of debts and funeral expenses everything that is not land and buildings.
This could include bank accounts, savings, investments and other non-cash assets such as jewellery and motor cars.
The amount that can be claimed depends on whether the deceased was survived by a husband, wife or civil partner and how many children (including adopted children) the deceased had.
If there is a surviving spouse or civil partner …
If the deceased has been survived by a spouse or civil partner, each of the children can claim a proportionate share of one third of the net moveable estate. So, for example, if the deceased had three children, each child could claim a one-ninth share (one third of one third) and if the deceased had four children, each child could claim a one-twelfth share (one quarter of one third).
If there is no surviving spouse or civil partner …
Where the deceased dies and is not survived by a spouse or civil partner, each of the children can claim a proportionate share of one half of the net moveable estate. So, for example, if a person had three children, each could claim a one-sixth share (one third of one half) and if they had four children, each child could claim a one-eighth share (one quarter of one half).
Possible claims by grandchildren
Where the child has predeceased their parent and had children, those children, being the grandchildren of the deceased, can make the claim and again, the amount is divided among the number of siblings. If the deceased’s child with two children would have been able to claim a one-sixth share but has died before their parent, those two children, being the grandchildren, would each be able to claim a one-twelfth share of the net moveable estate.
When calculating the value of the estate, allowable debts such as funeral expenses are deducted first.
If the child has been left a bequest in the Will either as a legacy (a specific amount or asset) or a share of the residue (the amount available after payment of debts and legacies), then they must either choose their Legal Rights or the bequest under the Will, as they cannot take both.
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