TSEM6532 - Legal background to trusts and estates: Scottish law: legal rights of surviving children or remoter issue

The surviving spouse and the children, of a deceased person, have specific legal rights. They also have the option of whether to claim these rights. Each must make his or her decision. This may be influenced by what they were left in the will, or by family circumstances.

The legal rights do not create trusts, but can interact with various trust situations.

A child of the deceased can choose to claim legal rights. The extent of the right depends on whether there is a surviving spouse of the deceased.

There is no surviving spouse

The children can, between them, claim one half of the net moveable estate ( TSEM6507).

There is a surviving spouse

The children can, between them, claim one third of the net moveable estate ( TSEM6507).

A child may have died before the deceased. If that child left children, they can, between them, claim their parent’s share of the estate. In extreme circumstances, great grandchildren might be able to claim.

If you are asked about the treatment of a legitim fund, refer to HMRC Trusts Edinburgh.