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Scots law on inheritance

(33 Posts)
K1mberly Mon 19-Oct-15 18:22:39

My mother, from who I am estranged, died some months ago . I have received a letter from her solicitor asking if I wish to make a claim on her estate, which I do .

The letter states that I need to consult a solicitor . Is that really the case , or can I handle it myself ? The inheritance will be small and I really don't want to fritter it away on unnecessary legal costs .

I strongly suspect that there IS a will and that I have NO right in it, although I have not been told this .

I understand it, my legal right is to one sixth of her movable estate ( I have one brother and her husband is still alive ) . Is that correct ?

Does her solicitor have to advise me if I have any right under the will? It's not mentioned in the letter .

In the unlikely event that I am mentioned in the will , I think that I have to choose between that and my legal right - is that correct? .

So if it's just a question of - she left you £1000 under her will or your legal right is £5000, why do I need a solicitor ?

What is the duty of her solicitor , in cases like this ?

How would I benefit from instructing my own solicitor ?

AnthonyBlanche Mon 19-Oct-15 21:55:55

Phone the solicitor who sent you the letter and ask why he / she is telling you to instruct your own solicitor.

It's not my area of law, but I think what you said about your entitlement is right. In Scotland a parent cannot write a child out of a will, unless the only thing covered by the will is heritable property. If your mother died leaving a spouse, children are entitled to (I think) one third of the moveable estate (ie everything that's not buildings or land) split between them.

It is a very long time since I studied this stuff at university, and I can't remember whether leaving you an amount in the will less than your share of one third of the moveable estate means you only get whatever you've been left in the will.

K1mberly Mon 19-Oct-15 22:23:50

Thanks for your reply Anthony .

From what I can gather, I have to choose between my right under the will and my legal right . I'm assuming I have no right under the will, but I will write and ask the solicitor to confirm this .

I've read more online tonight , and I think that if I don't wish to claim my legal right , the solicitor will ask me to sign a legal document giving up that right . So they want to make sure I can't claim later that I didn't know what I was signing .

So telling me that I need to instruct my own solicitor is about protecting them rather that helping me . But perhaps I'm just being cynical ......

lexigrey Mon 19-Oct-15 22:27:06

Message withdrawn at poster's request.

K1mberly Mon 19-Oct-15 22:53:51

For a perfectly good reason that I don't want to discuss here .

Thank you for your opinion lexi .

trixymalixy Mon 19-Oct-15 23:12:49

Can't really help with the legal stuff, but just wanted to say to lexi to butt out. My grandfather refused to fill in the grant forms for my mum to go to university so she got none of the money she was entitled to, so she made damn sure she got every penny she could from his estate, even though they were estranged. There were other reasons as well, unless you know the details then you shouldn't really comment.

AnthonyBlanche Mon 19-Oct-15 23:15:30

Good idea OP. If you are a beneficiary under the will, I'm pretty sure the solicitor would have to tell you.

Sorry I can't be more help, but as I say not my area of law and its a long time since I studied this kind of stuff.

K1mberly Mon 19-Oct-15 23:26:43

Thank you trixy, you are right, there are sometimes very good reasons for being estranged from family . But " legal matters " isn't the place to discuss them .

I'm sorry to hear about what your mum went through and I'm glad she got something in the end .

Anthony - I'm assuming that I was left nothing in the will, but it won't do any harm to ask . I appreciate your comments, I suspect that there are only a few Mners who are familiar with Scots Law

munchkinmaster Mon 19-Oct-15 23:38:03

I think they have to advise you to seek legal advice to cover their back.

You have three choices:
1. Take it
2. Renounce your right (as I did)
3. Neither claim nor disclaim (in this instance you have 20 years to get around to asking for it and benefactor of will knows you may do this).

K1mberly Mon 19-Oct-15 23:49:47

Thank you munchkin . I didn't know that I had 20 years to claim my legal rights !

I wonder what happens if the benefactor spends it all and has nothing when the claim is made years down the line . Not that I'm thinking of doing that , I'm just curious .

Rangirl Tue 20-Oct-15 00:00:38

Solicitor must advise you to take legal advice but you do not have to do so
It is against the Law Society rules to send out a document for a 3rd party to sign without the disclaimer of 'signing this will have legal consequences and you should take independent legal advice'

You do not have to take the advice

If you had been left something in the Will it is likely the solicitor would have said
If someone is left something in a Will and has a legal rights claim they can only have one or the other

So you would need to know what if anything is left to you in the Will and what your legal rights claim is so you can decide what one to choose

If your parent has a surviving spouse the legal rights fund is 1/3 of the moveable estate (essentially everything apart from houses and land)after deduction of certain expenses

That 1/3 is divided among deceased' children
If you had 1 sibling you would get a 1/6 th

If no surviving spouse its a 1/2 share divided

Hope this makes sense
It is my area but it has been a long day and took me 1/2 hour to log on !

K1mberly Tue 20-Oct-15 00:18:20

Thank you ran girl . Sorry to hear you have been caught by the new log on procedure , I think it's making everything a bit slow

My mothers husband is still alive and I have one brother, so I would get 1/6. I suspect that most of the estate will be heritable , so I'm not expecting much .

Will the solicitor give me information about the estate and how it was valued? Or is it just a matter of " she left £12k, here's your cheque for £2k"?

Do I have any right to see the will, if I'm not mentioned in it ?

I'm assuming that the solicitor is not interested in making moral judgements and just wants to get on with his job as executor

Viviennemary Tue 20-Oct-15 00:24:58

You should be able to apply for a copy of the will but I'm not quite sure how much time must elapse before you can do this. You could write to the solicitor handling the will and say yes you do want to make a claim. I don't think the solicitor will be bothered about whether or not you have a moral claim. They only want to ensure you know your rights in law which is one third of estate excluding property. I don't think the money will be handed over to anybody till this is sorted out.

K1mberly Tue 20-Oct-15 00:34:11

Thanks Vivienne . The death was 8 months ago . Do I apply to the solicitor or elsewhere ?

Rangirl Tue 20-Oct-15 09:40:45

Please put all thoughts of moral judgement out of your head
I cannot imagine any solicitor having any thoughts like that and if they do it is their issue not yours

Bear in mind that legal rights claims arise even if there is no estrangement

Standard case of wife leaves everything to husband,children still have a claim Less likely to exercise it perhaps

For the solicitor it is simply a step in the process to complete and tick off

Traditionally wills were not made available to non beneficiaries (or even to beneficiaries who only got a specific legacy)
That I think is s bit old fashioned now

It is up to the executor If I am asked to send someone a copy of the Will I would approach the executor on the basis there is no prejudice in producing it and person can always obtain a copy so let's not be difficult

So I would ask solicitor for a copy

If you say you want to claim you should get a statement showing the breakdown of the claim i.e Moveable estate is x expenses are y your share is etc

I have never had the situation mentioned by a pp where someone says I am not claiming or disclaiming and you can wait 20 years and see if I claim

Normally people either say Yes or No

I think there could be an argument that if you are offered your legal rights and don't take them you can't pop up 20 years later and say I'll have it

If legal rights are not sorted if eg the child can't be found then safest course is for the money representing the claim to be held on deposit for the 20 years
The rest of the estate can be distributed

If depends on whether the executors are also the beneficiaries

The claim for legal rights would be against the executors personally so if they are not getting the money they will not take the risk of a claim
If they are getting the money they may take the view they will take the £ and deal with a claim as and when it arises
If the solicitors are the executors the money will definitely be retained

K1mberly Tue 20-Oct-15 19:29:24

Thank you very much for taking the time to explain everything RanGirl . I had written to the solicitor saying that I do wish to claim my legal rights .

When I hear back from him I will request a copy of the will, as you suggest .

At first I was unsure what to do regarding my legal right . But then I worked out that of the four grandchildren , my three will get perhaps £1,000 each and maybe a similar amount again when my father dies.

In contrast , the one other grandchild will get around £1M ( before tax ) when my father dies ( and perhaps something now in the will ) .

So I don't think I have the moral right to deprive my own children of this relatively small amount on some principle when their cousin will receive a great deal of money .

K1mberly Wed 21-Oct-15 12:55:12

An update - I wrote to the solicitors saying a wished to claim my legal rights and asking for a copy of the will .

Strangely , they have replied saying they will require me to sign a document discharging my legal rights and they will send it to me.

This seems very odd . Are they trying to pressurise me into giving up my rights because I have not instructed anyone ? I understand that they are representing their clients interest, but surely they cannot act against my clear written wishes ?

AnthonyBlanche Wed 21-Oct-15 13:15:39

OP, they can't force you to instruct a solicitor., you have a right to represent yourself. I honestly think you should phone and speak to whoever at the solicitors wrote to you and ask for an explanation. The worst that can happen is that they won't tell you anything.

If you are a beneficiary under the will I would have thought they would send you a copy. Seems very odd indeed to say they will only send you a copy if you give up your legal rights.

K1mberly Wed 21-Oct-15 14:48:23

Did as you suggested , thank you Anthony . They apologised, they had misread my letter hmm

< lawyer fails Lawyering 101>

< Kimberly feels slightly more paranoid that usual >

I wouldn't dream of trying to represent myself in a complex legal matter . Or even a simple one in which the stakes were high .

But I thought this was a straightforward

" do you want your bairns share ? "
" yes please "
" ok, the movable estate was £X after fees, debts, taxes etc and here's your share 1/6 of X"

As I said up thread , I'm guessing it will be a couple of thousand pounds at most , so I don't want to run up legal fees of £500 for a solicitor to simply deal with the above .

My mother was " comfortable " . The estrangement was not recent and the death was not sudden , so any significant sums will have been moved long ago . As with many people , most of her estate is heritable .

I was warned years ago that if I did not do as they wished over a certain matter, I would be cut out of their wills. Im suprised they didn't move to England [ grin]

So it's not a surprise blow , it's part of their revenge which they've had years to plan and execute.

Its very sad when people thinks and act like this, but as you know, you can't control other people sad

K1mberl1 Thu 03-Dec-15 10:11:55

Hi again, I am the Op but I'm having trouble with Name changing .

I have obtained a copy of the will ( deed extract ) and the confirmation from the Scottish Courts and Tribunal Service .

Under the inventory I notice a couple of strange things

Under heritable estate , I see that the family home ( dwelling house ) is valued ( estimated valuation ) at £250k when I reckon it's worth around £700. This seems a significant difference .

My value isn't a random guess BTW. There are very few sales in the street where they live - the last two sales for the identical house were in 2007 for £435k and £450k. House prices in the area would be typical of those in the rest of Scotland , so a 50% increase from 2007 - 2015 would be conservative ( I'm allowing for the fact that they are elderly and perhaps the house needs some updating ) . IME the plot alone would be worth more than £250k .

I also note that the household furniture and personal effects are valued at £1,000. This also seems very low for 4 bed, 3 public room, 3 bathroom house .

So my question is - do either of these things matter to me, given that my share is of the movable estate ?

K1mberl1 Thu 03-Dec-15 10:18:53

I should also say that my estimate of my share of the legal rights is now about £4.5k. And I see that the executors costs are over £6k ( on a movable estate of less that £30k and heritable of £251k) .

This doesn't encourage me to get my own solicitor . Sigh

Rangirl Thu 03-Dec-15 21:01:02

Re value of house is it perhaps only a half share she owned ? Does it say value as estimated by executors Doeesnt affect your entitlement so you might want to leave it
Re the moveables that's a fairly average figure It is the second value so unless she had a lot of valuable stuff probably fair enough
The fees are on the high side Does that include the Vatand outlays
As the level of fee impacts on your claim I think you can query these
If. I was you I would get independent legal advice Get a quote on a fixed fee probably only be £250 or so

DeoGratias Thu 03-Dec-15 21:52:00

I spent 100 hours on my father's estate so the legal work and hours can add up.
Certainly you can search what similar houses of same size have sold for on the road to check for likely values but perhaps she only owned a share. When my father died he only owned a half share of his house. Lots of families organise things that way to reduce inheritance tax.

Just about nothing in my parents' house was worth anythnig. The clearance company said these days people buy from Ikea and there is no market for second hand furniture (unless antique). We had to pay to have things taken away actually not vice versa.

I'm not a Scottish lawyer (am English) but here if you leave a dependant out of a will they can choose to claim under separate legislation for a share of the estate. Scottish law might be very different.

PrimalLass Thu 03-Dec-15 22:25:45

House prices in the area would be typical of those in the rest of Scotland , so a 50% increase from 2007 - 2015 would be conservative

I don't think most areas have gone up 50% since 2007.

AnthonyBlanche Thu 03-Dec-15 22:27:27

Kimberl1 you said upthread that your mothers husband is still alive. As others have said, I think it likely that she therefore only owned half the house which is why only half the value is included in her estate.

There has been a drop in sales of more expensive houses in Scotland since the stupid SNP brought in a ridiculous rate of stamp duty of 10% for houses sold Between £325 and £750k (and in the process have reduced the amount of tax collected - but that's a whole other thread). That combined with the fact that the house may need a bit of work makes the value seem about right.

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