A person can leave property on death to another by making a bequest in a will. The Requirements of the Writing (Scotland) Act 1995 requires wills made after 1 August 1995 to be in writing and signed by the granter.
Individuals may also hold moveable and immoveable property with the title in joint names and to the survivor (this is commonly referred to as a survivorship clause).
Individuals may also hold moveable and immoveable property with the title in their own name or with others, with a special destination clause of that person’s property or share therein, in favour of another in the event of death.
Where there is no will, survivorship clause or special destination in place, property will pass in terms of the Succession (Scotland) Act 1964.
There is no requirement to register a will in Scotland.
In some instances, title to moveable property, including those with a special destination or survivorship clause will be registered, for instance in a company’s Shareholder Register.
Under Scots law, it is possible for a child or surviving spouse/civil partner to claim legal rights from moveable estate on the death of a parent/spouse/civil partner even where the deceased left a will. Legal rights are a protection from disinheritance. Children have a right to share one third of the deceased’s moveable estate (money, shares etc) if there is a surviving spouse or civil partner or one half if there is no surviving spouse or civil partner. A surviving spouse/civil partner has a right to one third of the deceased’s moveable estate (money, shares etc) if there are children or one half if there are none.
Property will pass under the Succession (Scotland) Act 1964 in the order set out below.
(a) PRIOR RIGHTS
A widow, widower or surviving civil partner (the survivor) has prior rights in his or her late spouse or civil partner's estate.
If the person who died owned a house, and the survivor lived there, he or she is entitled to the house and the furnishings and furniture of that house, subject to certain limits. The survivor can claim:
(b) LEGAL RIGHTS
If any estate remains after ‘prior rights’ have been met, a surviving spouse or civil partner and children are entitled to certain "legal rights" from the "moveable estate" of the person who died as set out in answer to 3 above
(c) FREE ESTATE
After the prior and legal rights have been satisfied, the rest of the intestate estate "devolves" according to legal rules, in the following order
In most estates, it is necessary for an executor (either named in a deceased’s will or appointed by the sheriff court) to obtain ‘confirmation’ from the sheriff court. The grant of confirmation is the executor’s title to administer the estate outlined in the inventory of estate which accompanies the application for confirmation - and also gives the executor authority to deal with all succession related matters in connection with that estate.
Where there is a will, it will name the beneficiaries or class of beneficiaries who should inherit part or all of the estate subject to any claim for legal rights.
Where there is no will, the rights and order of who will inherit the estate is set out in the Succession (Scotland) Act 1964.
Where there is no will a surviving cohabitant may also apply to the court within six months of the death for an award from the estate under the Family Law (Scotland) Act 2006.
‘Vesting’ is the point at which a beneficiary acquires ‘a right of property’ in respect of a legacy. Under the Succession (Scotland)1964 Act, the estate vests in the executor for the purposes of the administration. At this point, the beneficiary acquires a personal right against the executor for delivery of the subject of the legacy in his/her favour. When the subject of the legacy is delivered to the beneficiary, he or she acquires a ‘real right’.
The timing of vesting is a matter of what the deceased intended determined by reference to his or her will.
The executor will be liable to pay all debts due by the estate before distributing the estate to beneficiaries. The estate should not be distributed until six months from date of death to allow creditors time to make a claim. If a creditor does not make a claim within 6 months and the executor distributes the estate, the beneficiaries are in theory liable for any debts to the extent of their legacy.
The title of immoveable property can be transferred to a beneficiary by means of a disposition which should be registered in the Land Register for Scotland, or by attaching a signed document (docket) to the confirmation (or to a certificate of confirmation).
If there is a survivorship clause, the title of the property automatically passes to the surviving owner and an extract of the death certificate should be placed with the title deeds.
Not all estates require the confirmation from the court – some fundholders will pay out without the need for confirmation. If confirmation is required, an executor must be appointed, either named in a will or by an application for appointment of an executor dative by the court.
An executor appointed, either under a will or by the court, who is granted confirmation by the court will administer the estate. However, in some cases, fundholders will transfer the deceased’s estate without the need for confirmation.
There are no documents required to be issued proving the status and rights of beneficiaries. Items of estate will be transferred to the beneficiaries by the executor administering the estate and for some this will involve a formal transfer, and possibly registration, of title. As noted above, if there is a survivorship clause, the title of the property automatically passes to the surviving owner and an extract of the death certificate should be placed with the title deeds. An inheritance tax form will have to be submitted as part of the confirmation process in Scotland, even if no Inheritance Tax is due.
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