The following Private Client guidance note Produced in partnership with Jacqueline Leslie of Harper Macleod LLP provides comprehensive and up to date legal information covering:
This Practice Note deals with the procedure for obtaining confirmation in intestate estates.
For testate estates, or those aspects of applying for confirmation which are the same for both testate and intestate estates, see Practice Note: Application for confirmation in Scotland—testate cases.
The rules of intestate succession are set out in the Succession (Scotland) Act 1964 (S(S)A 1964). The rules provide a hierarchy as to entitlement to benefit from an intestate estate.
S(S)A 1964, ss 8 and 9 deal with prior rights—those of the surviving spouse or civil partner.
’Prior rights’ are the first entitlements due from an intestate estate once debts, funeral expenses and any inheritance tax (IHT) have been paid.
After prior rights, the next rights of succession due from an intestate estate are legal rights. Legal rights are an absolute entitlement and apply in both testate and intestate estates. Those who can claim legal rights are spouses, civil partners, children and the issue of any predeceasing children.
For further comment on legal rights, see Practice Note: Legal rights—Scotland.
After payment of prior rights and legal rights, the remaining estate (free estate) is paid in accordance with the order set out in S(S)A 1964, s 2:
parents and brothers or sisters (each class taking one-half or the whole if only one class is represented)
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