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Legal rights are claims to an estate which arise in the event of intestacy. They also allow surviving spouses, civil partners and children to claim a certain proportion of the deceased’s assets regardless of the contents of the deceased’s Will. This page outlines how legal rights are enforced in both contexts.

If you require legal advice on any matter relating to your or a loved one’s Will, please contact our executry solicitors today. 

Legal rights in intestacy

In the context of intestacy, there are four steps in distributing an intestate estate:

  • Covering debts and liabilities owed by the estate.
  • If the deceased was married or in a civil partnership, meeting their entitlement under their prior right to the deceased’s dwelling house, furniture and a cash sum.
  • Distributing a further portion of the estate according to the rules on legal rights.
  • Distributing the remainder of the estate.

Further detail on the rules of intestacy is available here. Once the surviving partner’s prior right is met, the deceased’s moveable estate is divided according to the rules on legal rights. The term “moveable estate” includes all of the deceased’s property other than land and buildings (for example, money, shares, vehicles, jewellery and other personal possessions).

The rules on legal rights apply as follows:

  • If the deceased left children, the surviving spouse or civil partner is entitled to one-third of the moveable estate, and the children are collectively entitled to one-third of the moveable estate (divided equally between the children).
  • If the deceased did not leave children, the surviving spouse or partner can claim one-half of the moveable estate.
  • If the deceased left children but did not have a spouse or civil partner, the children are collectively entitled to one-half of the moveable estate (divided equally between the children).

If the deceased’s child died before them, that child’s direct descendant can claim their share of the estate.

These rules may not, of course, match the deceased’s intentions. The only way to ensure that your assets are distributed according to your wishes after your death is to write a legally valid Will. This is generally a quick and relatively inexpensive process.

Legal rights to an estate where the deceased left a Will

The rules on legal rights are also applicable if the deceased’s Will does not account for his or her spouse, civil partner or children. If, for example, the deceased left all of their assets to charity, but they had a spouse and child, the spouse and child could each claim one-third of the moveable property. The general policy behind this rule is that testamentary intention should be subject to consideration for the surviving family. Surviving spouses, civil partners and children are not, however, required to claim their legal rights.

If the deceased had left a small sum to his or her children, the children might wish to claim their legal right if it is more valuable. They cannot, however, enforce both their legal right and their entitlement under the Will.

It may be surprising that these rights can be enforced regardless of the contents of a Will. If you are concerned about how legal rights may apply to your estate, please do not hesitate to contact us.

"I used Wilson and Fish to get Confirmation for my late fathers estate. They provided a friendly and efficient service. Good communication throughout the process and everything clearly explained. I would happily recommend Wilson and Fish. Thanks to Donna for making it so simple."

- Gavin Laird, Scotland, December 2019 5stars

Wilson & Fish Expert Executry and Probate Solicitors Glasgow, Scotland

Wilson & Fish specialises in Probate and Executry. We are based in Glasgow and have advised clients across Scotland, including from Ayrshire, Edinburgh, Aberdeen, Dundee, Paisley, East Kilbride and Stirling. If you have any questions regarding legal rights, please contact us today on 01412227951 or fill in our online enquiry form. Our experienced and knowledgeable solicitors can advise at your earliest convenience.


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