Scotland - Exercising legal rights for inheritance

[Bellebelleagain]

I’ve been estranged from my father for almost 20 years and he died recently. Solicitor has been in touch to advise that in his will everything has been left to his wife (not my DM, he remarried) but that I have legal rights to claim one third of his moveable estate as per Scottish law.

I don’t know if I want to claim anything but I’d like to understand the potential consequences if I decide to exercise my legal right. Everything I’ve read online simply states what the law is (doesn’t matter what a will says, the law seems to override the deceased’s wishes) and advises that you take legal advice. Does anyone have experience of this or know what could happen? If I respond to say that I want to claim what’s legally mine could my father’s widow contest the claim?

If you've been estranged Would you want to buy things with his money?

I’m not asking about the moral implications of this thanks @MichelleScarn that’s a different conversation and not something I want to get into here. I simply want to understand the legal process.

You have an absolute right to a set share of the net moveable estate. It is an entitlement. There may or may not be a lot there. The widow cannot dispute your right. You want your own solicitor to check the final estate account showing how much you are due. There are some peculiarities and special rules about how you work out how much counts as the moveable estate from which you have a share.

Thanks @ItsDinah thats very helpful and clear. The solicitors letter attaches a detailed account of what the total moveable estate is worth and the accounts where the money is held. The one sixth each share for me and my sister is a significant amount so we both need to consider carefully what feels like the right thing to do.

children are entitled to a minimum of a third of the oveable estate between them so if one child ou get a third 2 children a sixth each 3 children a ninth each etc etc. The father should have been advised when he made the will that it was not legal to disinherit children maybe they were hoping you wouldn't find out until too late
his wife will still have all the immovable estate ( ie the house) and at least one third of the moveable estate too, the remaining third can be distributed as he saw fit so he could leave the final third to his wife
i am sure the process is quite simple to state that you want your legal share. then the solicitor who wrote to you will simply arrange it to be sent to you in due course
the only difficulty comes when someone is left specifically say £5000 then you have to choose whether you want what is in the will ie £5000 or whether you want your legal share, but you can't have both, so if your legal share is less than 5k you would be silly to insist on legal share on the other hand if your legal share would be 15k you would not take the 5k

The amount is due to you. If you are in receipt of means tested benefits, it's a mess. I take it you are not. You are free to refuse to accept it. If you do that, you are making a gift to the widow or whoever else your father left his estate to under his Will. You can pass the inheritance on to someone else or to a charity. This can be very tax efficient,but obviously that depends on a lot more information about your affairs than you should post online. You may have cover under your house insurance for legal advice. Similarly,your trade union or professional body membership may give you legal cover. If not,for a substantial amount,it's worth taking the hit of paying your solicitor for advice. Good opportunity to update your own Will,Power of Attorney etc.

Good point @ItsDinah I do have legal cover through my work which I always forget about, will contact them tomorrow.

I did this. It is very simple and straightforward. In fact the solicitor did not even charge me (she knew the character of the deceased parent and was disgusted with her..)
It felt like a refund towards the years of therapy I'd paid for to recover from said parent's mental and physical abuse..

Thanks @20questions and sorry that you went through that but good to hear how simple it was. The law is there to stop parents disinheriting their children for a reason.

the law was originally there to stop destitute widows and younger children becoming the responsibility of the parish / state; when the property or croft or farm or business or whatever where passed down to the eldest son and he then didn't care for his mother and younger siblings

This is the law in Scotland. The process is really simple. Write to the solicitor confirming that you do want to claim Legal Rights. The 1/6 of moveable estate will have some of the Executry expenses deducted from it. Legal Rights and the expenses that are deducted are both set out in law. If you accept the final figure you will be sent those funds along with a legal receipt to sign and return.
Doesn't matter if the wife is not happy. She cannot challenge it.
It is the only inheritance you will get from your father. I would take it otherwise it goes back into the pot the wife gets.

Thanks @Benmac I spoke to a lawyer earlier who confirmed exactly this.

Scottish private client lawyer here and I agree with all this. The executor(s) are the client of the solicitor you are just a beneficiary. Executors legally must notify children of a legal rights claim. You either say yes please I’ll claim it and you’ll get a cheque (at some point) or no thanks and you might have to sign a formal declinature confirming you’ve waived your legal rights. Then the new wife will get it. If you’ve not been left anything else take what you can. Most peoples estate is largely heritable (ie house) moveable assets are cash in the bank etc so not usually as much. But better than nothing.

Thanks @strangerontheinternet I’ve decided to claim it

I’d be interested to know how this will impact his widow. Although you've said its a considerable sum, so I'm assuming she will get 2/3 of his moveable estate.

@Soontobe60 she’ll get the remaining 2/3rds plus all property as it’s only what’s classed as ‘moveable assets’ which are covered by the law - savings, shares etc.