When someone dies, with or without a Will, one of the first things to be established is whether anyone is entitled to Legal Rights. The spouse or civil partner and children of the deceased are entitled to Legal Rights. They do not need to lodge a claim for these as they must either be paid or revoked by those entitled to receive them.

How do Legal Rights apply in an estate?

Legal Rights give the spouse or civil partner of the deceased along with any children a right to share in the deceased’s moveable estate. That means any estate that is not, generally, land and buildings. They apply whether or not the deceased left a Will. Legal Rights are also dealt with as if they are a debt on the estate. That means they need to be discharged or paid before the distribution of the remainer of the estate.

However, where there is no Will, before Legal Rights can be considered, Prior Rights must be dealt with.

What are Prior Rights?

Prior Rights are entitlements the surviving spouse or civil partner of the deceased has to the deceased’s estate. Currently, the Prior Rights a surviving spouse or civil partner enjoys are as follows:  

• The family home (up to a value of £473,000);
• The furniture and contents of the family home (up to a value of £29,000);    
• A cash amount of £89,000 where there are no children or £50,000 where there are children.

It is only after Prior Rights have been satisfied that Legal Rights can be considered. It is also important to note that if the Prior Rights exhaust the estate, there will be nothing available for Legal Rights. That means nobody will receive any share in the estate even if they are entitled to Legal Rights.

How are Legal Rights Calculated?

Once Prior Rights have been satisfied or where the deceased left a Will, Legal Rights are set out as follows:

• The surviving spouse or civil partner: one half of the moveable estate where there are no children or one third of the moveable estate where there are children;
• The children: one half of the moveable estate to be shared equally amongst the children where there is no surviving spouse or civil partner or one third where there is.

It is also important to note with regard to both Prior Rights and Legal Rights that if the deceased was cohabiting but was neither married nor in a civil partnership with their partner, the surviving partner has neither Prior nor Legal rights to the estate.

It is also important to note that where children are beneficiaries in any Will of their parent, they can either receive the inheritance contained in the Will or their Legal Rights. They cannot have both.

How do the beneficiaries find out about their Legal Rights?

In normal circumstances, the solicitor acting on behalf of the executor will write to those entitled to Legal Rights to explain their entitlement. It is also not unusual for them to be invited to revoke their Legal Rights in favour of their parent. If they do revoke their Legal Rights in favour of their parent, they give up their entitlement to share in the estate.

As you can see from the breakdown on Legal Rights, either one third or one half of the moveable estate will remain after these have been paid. The question is who should receive that share?

Where the deceased made a Will, the remaining estate will be distributed in accordance with the provisions in the Will.

Where there is no Will, the law of succession will dictate the final destination of the remainder of the estate. This might not be as you imagine. To understand how the remaining portion of the estate is divided, you should consult the chart on the Gazette website. This shows how an estate is shared out where there is no Will.

This is why we recommend that all our clients should make a Will. It is the only way to make sure your estate can be shared as you decide.

Specialist Wills solicitors in North Berwick and Dunbar, East Lothian

Our solicitors have many years of experience advising our clients on Wills and estate planning. It pays to plan in advance. If you would like to draw up a Will or to make changes to any Will you might have, please simply get in touch with us.