11 Sep 2012

Legal Rights - Legitim

Legal Rights - Legitim

Ryan Fox, Wills, Trusts & Executries Associate, highlights a more controversial aspect of Scottish succession law – the claims children may make against an estate irrespective of the terms of a Will.  

Ryan Fox, Wills, Trusts & Executries Associate, highlights a more controversial aspect of Scottish succession law – the claims children may make against an estate irrespective of the terms of a Will.  

Legal Rights are considered one of the more controversial aspects of Scottish succession law.  They are a claim which can be made against a deceased individual’s estate by a spouse or civil partner and children, irrespective of the terms of a Will.  This article is intended as a brief overview of children’s legal rights - called legitim, or “the bairns’ part”.  

Legitim is an entitlement for children (or the offspring of predeceasing children) to share the moveable estate of a deceased parent, where there is no provision for them in the Will or as a substitute for any provision.  The moveable estate generally consists of all assets in an estate excluding land and buildings, and can include a share in jointly held assets.  If the deceased was married or in a civil partnership at the time of his or her death, the deceased’s children are each entitled to claim an equal share in approximately one third of the net moveable estate.  If the deceased was unmarried and not in a civil partnership, the share amounts to one half. 

In the typical family situation where parents have Wills in place leaving everything to the survivor, with the children as substitute beneficiaries, it is rare for legitim to be claimed unless there has been a family discussion and the surviving parent is happy for the children to receive their entitlement.  In particular making a claim on the first death against the wishes of the surviving parent could lead to a child being cut out of the surviving parent’s own Will (and the child’s entitlement to legitim on the second parent’s death is likely to be of far lower value than if they had been a principal beneficiary of the survivor’s Will)! 

Legitim is more likely to be a concern where there are estranged children, and the thought of an estranged child being able to claim legitim can cause considerable distress to a parent, and ultimately the beneficiaries named in the parent’s Will. 

There can even be circumstances where the ability for children to claim legitim can be an advantage.  In particular, if the surviving parent ends up requiring residential care, any inheritance they receive from the predeceasing parent’s estate could be at risk of being lost to fund care fees.  Where the surviving parent is the main beneficiary under the predeceasing parent’s Will the ability for children to claim legitim can protect some of the predecessor’s estate (although it is a poor substitute for proper estate planning measures which can  be taken prior to death). 

Legitim also provides children with a degree of protection from an indirect disinheritance.  It is common for spouses or partners to have children from previous relationships, who they are on good terms with.  If they elect to make each other the only or main beneficiaries under their Wills, there is no guarantee that the children of the predecessor will receive any benefit from the survivor’s estate, as the survivor is free to change his or her Will at any time.  The ability to claim legitim ensures that the children of the predecessor receive some benefit from the predecessor’s estate. 

There are steps which can be taken to limit a children’s legitim, and we are happy to advise clients in that regard.  However, the steps can prove disproportionately costly or inconvenient unless there is a particularly large moveable estate from which legitim can be claimed. 

It is also important to ensure that legitim claims are properly dealt with following a death, to ensure that these are accurately calculated and settled or, if not to be claimed, formally discharged, to ensure that problems or a dispute does not arise later.  Where instructed in the administration of an estate we deal with legitim as a matter of course.  Even if a family is in agreement as to whether or not legitim is to be claimed, it is advisable to obtain professional advice as to the estate planning and tax implications of the proposed course of action, and input from our independent financial advisors can be invaluable. 

Our Wills, Trusts & Executries Solicitors can provide advice on all aspects of legal rights (including how these can be limited) and resolving potential claims when dealing with an estate after a death.

Ryan Fox, Associate

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