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Your rights as a child of the deceased (Scotland)

In Scotland, children have legal rights in a parent's estate that the will cannot remove. You do not need to be named in the will to claim them.

What is this?

Scots law is different from the law in England and Wales. It protects close family through what are called legal rights (in older language, legitim for children). These are a fixed entitlement to a share of part of the estate, and a will cannot disinherit you from them. This guide is a plain-English outline; estates can be complex, so take advice on the figures in your own case.

Who can use it?

The children of the person who has died, including, in modern law, adopted children and children whose parents were not married. You qualify as a child of the deceased.

What you are entitled to

The children's share of the moveable estate depends on whether there is a surviving spouse or civil partner:

• If there is no surviving spouse or civil partner, the children are entitled to one half of the moveable estate.
• If there is a surviving spouse or civil partner, the children are entitled to one third of the moveable estate.

That children's share is then divided equally between the children. So if you are one of two siblings and there is no surviving spouse, the children's half is split between you, giving each of you a quarter of the moveable estate. The surviving spouse or civil partner has their own separate legal rights.

The 20-year window

You do not have to claim immediately. A claim to legal rights can generally be made for a long period, commonly understood as up to 20 years. That said, claiming sooner is far simpler, because the estate may be wound up and assets distributed in the meantime. Do not assume that silence has cost you the right, but do act once you are able.

If no one has acted on the estate: becoming executor-dative

Sometimes nobody steps forward to deal with the estate, especially where there is no will or the named executor will not act. In that situation a relative can ask the court to be appointed as executor-dative.

1. Petition the sheriff court for appointment as executor-dative. This is done at the sheriff court for the area where the deceased lived.
2. Arrange a bond of caution if required. An executor-dative usually needs insurance-backed security called a bond of caution, in particular where a solicitor prepares the application and you are not the surviving spouse. If the sheriff clerk helps you with a smaller estate, a bond of caution is usually not needed.
3. Obtain confirmation (see below) so that you can gather in and distribute the estate.

The court fees are smaller than people fear. Confirmation dues are nil for estates up to £50,000; an inventory fee applies above that. Your main costs are likely to be any bond of caution and, if you choose to use one, a solicitor. For a smaller estate, the sheriff clerk's commissary office can help you apply, which also avoids the need for a bond of caution. Check the current fees on the Scottish Courts website.

What confirmation is and why it matters

Confirmation is the Scottish equivalent of probate. It is the court document that confirms the executor's authority to deal with the estate. Banks, registrars and others will usually not release assets to anyone until confirmation is produced.

Confirmation matters here for two reasons. It is the practical key that unlocks the estate so that legal rights and other entitlements can be paid. And the process of completing the inventory for confirmation produces a clear picture of what the estate actually contains, which you need in order to know what your share is worth.