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Scottish Law Prior Rights etc


saintalan
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Hello hopefully in the correct section and there is a Scottish expert for this soap opera :|

 

I will outline the scenario and my understanding of the law.

First the not too complicated part (I believe)

 

Mrs X died without leaving a Will

Mrs X is survived by Mr X (20 years separated but not divorced) and 3 Children.

 

Mrs X owns 100% property A (that was signed over legally to her from Mr X 20 years ago.)

 

My understanding of Prior Rights:

Mr X is the widower and thus on the face of it has prior rights. However he does not live in property A, so does not "qualify" as the survivor. Therefore he has no prior rights.

Then property A would become part of "the remainder of the estate" and the 3 Children inherit the house (33.33% each), as the intestate estate devolves according to legal rules.

Basically "The Children" are at the top of lists to inherit, and well before the surviving spouse.

 

So if I am correct so far then please read on.

 

Mr X lives in property B. Property B deeds are still in joint names for Mr X & Mrs X

Mr X qualifies as "the survivor" as he lives in property B. Hence under prior rights Mr X claims the house (Value below £473000 etc).

 

Again hopefully correct and not too complex.

Heres the fly in the ointment.

 

Mr X also rents out property C to a tenant. It appears that property C deeds are also still in joint names for Mr X & Mrs X. (Mrs X would not have realised and never got half rent etc. Not worried about this part).

Following the same rules/pattern it would appear that property C would also not go to Mr X under prior rights, but that 50% of property C would end up being split to the 3 children !!

 

Can anyone tell me if this all looks correct ?

There is no in family fighting going on here but rather just trying to ensure all is correct in my head before engaging legal help.

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Even if someone could just comment on Property A please ?

 

This is the extract I take from the succession Scotland Act 1964

 

4.10 Section 8(4) provides that the prior right to the dwelling house applies only where the surviving spouse has been 'ordinarily resident' in the house at the death of the testator. Thus, if the deceased owned any house in which the surviving spouse had never lived, prior rights may not be claimed in relation to that house.

 

In the simple booklet "what to do after a death in Scotland" edition 11

A Widower has prior rights. We call someone with prior rights "the survivor".

If the person who died owned a house, and the survivor lived there,

 

 

There must be loads of scenarios in Scotland where no wills have been left and couples have been separated long term and not divorced.

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I saint I notice you have had plenty of views but this appears to be very complex...are you the Executor/dealing with probate...or are you going to appoint Legal Advice ?

 

If you signed over all interest in property A then you cant have any vested interest as stated .

 

4.10 Section 8(4) provides that the prior right to the dwelling house applies only where the surviving spouse has been 'ordinarily resident' in the house at the death of the testator. Thus, if the deceased owned any house in which the surviving spouse had never lived, prior rights may not be claimed in relation to that house.

 

Regards

 

Andy

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Thanks Andy I am a neutral family member with no financial interest.

Thats how I read it certainly for property A

I am unofficially letting all the family know what I believe to be the outcome before likely having to engage a solicitor.

This is because the other weird scenario would appear to be that the surviving estranged spouse will presumably have to be the executor !!!

He does not want to. or in fact is probably not "able" enough to do so.

When I called the sheriff clerk to ask if it was possible for myself to be appointed, the response was negative.

Hence work out as much as I can before I accompany him to a solicitor to do all the donkey work on his behalf.

 

As an aside I believe it is called Confirmation and not probate up here.

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Is there a will ...a named executor?

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I mentioned that in the opening post.

No will or named executor.

Basically no moveable estate beyond enough to pay for the funeral, so only the 3 properties to sort out.

They have no debt on them.

As I say propertys A & B seem clear cut enough.

Property C is just slightly odd as neither of them lived in it. I assume it will follow the property A succession.

Although it might seem complex on the face of it, if this occupancy clause is clear cut, then it should be dealt with fairly easily.

 

I assume for inheritance tax calculations that property A plus 50% of property C (The parts that will go to the children) would be the valuation required. That will not be over £325,000

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So no IHT problems then ..thats cut and dry...the estate will simply comprise of the value of 3 properties and should be reflected on the Confirmation.

 

If your system is similar to probate in England..then simply list the properties and expected value and beneficiaries...although there will be costs for Solicitors and conveyancing.

Your Probate (Confirmation) completion should be quite simple to complete.

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