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Research Briefings
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Ais-eòlas
Published by The Scottish Parliamentary Corporate Body
Inheritance law in Scotland
Author: Sarah Harvie-Clark
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Published: Friday 11 Jun 2021 (SB21-32)
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Overview
Report
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Overview
Report
Executive summary
What this briefing does
Practical matters
Making a will
What to do after a death in Scotland
The current law and practice
Some key terms
The role of the executor
Who will be the executor?
How the executor obtains the authority to deal with an estate
When someone dies without leaving a will
Key legislation
The stages of distributing a person’s estate
The prior rights of the surviving spouse or civil partner
The legal rights of the surviving spouse or civil partner
The legal rights of any children of the deceased
The free estate
The categories of relatives who can potentially inherit
The cohabitant's claim on the estate
Where there is both a cohabitant and a spouse and civil partner
The cohabitant's claim compared to the rights of children and other relatives
Where someone dies leaving a will
Requirements for a valid will
The capacity of the person making the will
The requirement for writing and further requirements relating to signatures
Other possible grounds for challenge
Common aspects of wills
Cancelling or changing a will
Protection from disinheritance
An overview
The practical effect of the restriction of legal rights to moveable property
Reform of inheritance law
The case for reform - and the difficulties for policymakers
The attempts to reform inheritance law (1986-2021)
What happened - in more detail
The law which would apply when a will has been made
Should adult children still be protected from disinheritance?
What was proposed
Why was option 2 controversial?
What the outcome was
Should cohabitants be protected from disinheritance?
The law which applies where no will was made
Issues faced by 'blended families'
What should the law be for cohabitants?
The outcome of the 2019 consultation
What might come in Session 6 of the Scottish Parliament
Sources
Image: The requirements for a valid will and the requirements for a probative will
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Scottish Government. (2015). Consultation on the Law of Succession. Retrieved from
https://www.webarchive.org.uk/wayback/archive/20150828184326/http://www.gov.scot/Publications/2015/06/7518/downloads
Scottish Law Commission. (2009). Report on Succession. SLC No 215. Retrieved from
https://www.scotlawcom.gov.uk/files/7112/7989/7451/rep215.pdf
Scottish Government. (2019, February 17). Law of succession: consultation. Retrieved from
https://www.gov.scot/publications/consultation-law-succession/
Scottish Government. (2020, May 19). Law of succession: consultation response. Retrieved from
https://www.gov.scot/publications/scottish-government-response-consultation-law-succession/
Scottish Government. (2016, November 16). What to do after a death in Scotland - practical advice for times of bereavement: revised 11th edition. Retrieved from
https://www.gov.scot/publications/death-scotland-practical-advice-times-bereavement-revised-11th-edition-2016-9781786522726/
Scottish Courts and Tribunal Service. (n.d.) Small Estate Guidance Notes. Retrieved from
https://www.scotcourts.gov.uk/rules-and-practice/guidance-notes/dealing-with-a-deceased's-estate-guidance-notes
Scobbie, E.M. (2011). Currie on Confirmation, para 11-11. Edinburgh: W Green.
Scottish Government. (2015). Consultation on the Law of Succession, para 4.5. Retrieved from
https://www.webarchive.org.uk/wayback/archive/20150828184326/http://www.gov.scot/Publications/2015/06/7518/downloads
Scottish Law Commission . (1990). Report on Succession. Scot Law Com No 124. Retrieved from
https://www.scotlawcom.gov.uk/files/6812/7989/6684/rep124.pdf
Land Reform Review Group. (2014). The Land of Scotland and the Common Good - Report of the Land Reform Review Group. Retrieved from
https://www.webarchive.org.uk/wayback/archive/20160105190304/http://www.gov.scot/Publications/2014/05/2852/downloads
Scottish Government. (2014). Consultation on Technical Issues Relating to Succession. Retrieved from
https://www.webarchive.org.uk/wayback/archive/20150219154104/http://www.gov.scot/Publications/2014/08/1185/1
Scottish Government. (2018, October 18). Scottish Government response to the Consultation on the Law of Succession. Retrieved from
https://www.webarchive.org.uk/wayback/archive/20181226070023/https://www2.gov.scot/Topics/Justice/law/damages/succession/scottish-government-response-succession-consultati
Scottish Government. (2018, November 21). Intestate succession in British Columbia and Washington State. Retrieved from
https://www.gov.scot/publications/intestate-succession-in-british-columbia-and-washington-state/
Scottish Government. (2018). Analysis of Responses to the Consultation of the Law of Succession. Retrieved from
https://www.webarchive.org.uk/wayback/archive/20181226070019/https://www2.gov.scot/Topics/Justice/law/damages/succession/analysis-of-responses-succession-consultation
Reid, D. (2008, November 8). From the Cradle to the Grave: Politics, Families and Inheritance Law (2008). Edinburgh Law Review, 12 (3). pp. 391-417, 2008. Retrieved from
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2925441
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