How Does Scottish & English Succession Law Differ?
Although both part of the United Kingdom the process, the process of writing a Will and the laws of succession and intestacy are fundamentally different north of the Border from England.
Prior and Legal Rights
When an individual dies in England without making a Will (Intestate), the laws of Intestacy succession state that the whole estate will pass to the first surviving spouse automatically..
However in Scotland, the spouse has 'prior rights' to a portion of the estate, but they do not automatically inherit it all. If the deceased person is survived by a spouse and children then the spouse will inherit property up to a maximum value of £300,000, and furniture up to a value of £24,000, and a legacy up to a value of £42,000.
After this the 'legal rights' law is excercised with regard to the portion of the estate which is not land or buildings and called 'moveable estate' (this could be money, shares, jewellery, vehicles etc) Under this law, one third of the 'moveable estate' is given to the surviving spouse; one third to the children; and one third is transfered to what is called the 'free estate' (a term used to describe the remainder of the estate after debts, 'prior rights' and 'legal rights' This 'free estate' is then divided equally between the children.
NB: In English succession law the 'residual estate' is similar to the Scottish 'free estate'
If the deceased person was survived by a spouse but no children, then the spouse will have the 'prior rights' to £300,000 of property, £24,000 of furniture, and a £75,000 legacy.. After this the 'legal rights' to the 'moveable estate' mean that 50% goes to the spouse and the remainder to the 'free estate'. The 'free estate' is then divided equally between parents and brothers and sisters, or if they are not still alive, equally between the brothers and sisters or, if there are none, wholly to the parents. If none of these apply then the entire 'free estate' goes to the spouse.
Precedence
In England a Will is seen as a safeguard for the intentions of the person who has made the Will (the testator)
In Scotland the law of succession states that the wishes expressed in a Will are not definitive. If the deceased person has left a Will then the 'prior rights' detailed above are not applicable. However the 'legal rights' are maintained even if they are not compliant with the directions given in the Will. In this way a child or spouse who is not a beneficiary of the Will can still excercise their 'legal rights' in order to benefit from the estate. However they cannot do both. That means if they choose to excercise their 'legal rights' they will have to be discounted as a beneficiary if they are also named in the Will and vice versa.
Legal requirements
For a Will to be valid in Scotland the following requirements are necessary for the individual making the Will.
1. You must be an adult, normally over the age of sixteen years. (Although Scottish law does allow for a child over twelve years of age to write a Will)
2. You must be of sound mind and have the mental capacity to understand the nature and effects of your Will.
3. Your Will must be correctly signed in the presence of an adult who is not a beneficiary (see signing your will)
4. You must live in Scotland (or temporarily live abroad with the intention of returning to live in Scotland)
5. Any percentages stated in the Will to describe the portions for beneficiaries must total 100 percent to be valid