Changes to Prior Rights
Posted: Thursday 16 February 2012
Where someone dies without making a Will, the Succession (Scotland) Act 1964 provides the deceased’s spouse or civil partner has specific rights in their estate known as Prior Rights. Prior Rights rank above all other entitlements in an estate, including the rights of children. Following an amendment to the law, there are new financial limits for the Prior Rights of spouses and civil partners of those who die without Wills.
More for spouses?
For deaths on or after 1 February 2012, spouses and civil partners of a deceased person are entitled to the following Prior Rights on intestacy:
- a dwelling house in which the surviving spouse or civil partner lived up to the value of £473,000 (an increase from £300,000);
- furniture and furnishings in that dwelling house up to a maximum total value of £29,000 (an increase from £24,000); and
- a payment of a cash sum of £50,000 if the deceased also had children or £89,000 if the deceased did not have children (increases from £42,000 and £75,000 respectively).
Therefore, the total entitlement for spouses and civil partners has increased to £552,000. Children can then claim their Legal Rights but this is only to the moveable estate (i.e. all assets except the house) which is left after the satisfaction of the above Prior Rights and is only a one third share between all of the deceased’s children where there is a surviving spouse or civil partner. As the majority of estates are likely to fall short of the new Prior Rights limits, not having a Will could prove disastrous for your children, particularly if your spouse is not their parent.
Less for children?
To illustrate this:-
Jack and Kate have been married for eight years. Jack has one child, David, from his first marriage. Jack dies without leaving a Will and Kate claims her Prior Rights which exhausts the estate. Kate later remarries George and they have two children, Nina and Tony. Kate then writes a Will and upon her death leaves all of her estate to George, Nina and Tony. Under the law of intestacy, David has been disinherited and ultimately, George, Nina and Tony have been the beneficiaries of Jack’s estate.
If only Jack had thought to write a Will, things could have been different. He would have been able to make provision for Kate, but would also have had the opportunity to allocate part of his estate for David too. The only way that you can be sure that your children and any other people who you wish to benefit from your estate are provided for when you die is to write a Will.
Morton Fraser’s Asset Protection team can assist with drafting Wills and Trusts and advising on any inheritance issues. Please contact Morna Coutts, a specialist in this area, at morna.coutts@morton-fraser.com or on 0131 247 1089, for additional information.
