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I am a landowner and am aware that the Scottish Government is looking at legal changes to succession planning and who can make a claim on your estate. I have a clear idea of who I would want to inherit my land and property. Should I be concerned?

The Succession Bill is currently under review and one of the key areas of proposed change is what is known as ‘Legal Rights’.

At present under Scots Law, even where a person dies leaving a Will, that person’s spouse or civil partner and their children are entitled to claim Legal Rights against the deceased’s moveable estate. In doing so they forfeit any entitlement under the Will.

Where the deceased is survived by both spouse/civil partner and children, the Legal Rights claim of each is limited to one third of the moveable estate (this being among all of the children equally). In the case of a spouse/civil partner, where there are no surviving children or, in the case of children, where there is no surviving spouse/civil partner, this is increased to one half of the moveable estate. The moveable estate includes cash in bank accounts, stocks and shares – everything apart from land and buildings. Importantly, any bequest of heritable property (land and buildings) is unaffected by any Legal Rights claim.

On the face of it, landowners can leave land and buildings to any chosen beneficiaries without fear of a Legal Rights claim. However, one potential and fairly common pitfall is where land and buildings are not owned by the deceased outright, but actually form the assets of a partnership. In this case, the deceased’s interest in the partnership is treated as a moveable asset and, as such, would potentially be subject to any Legal Rights claim. One of the suggestions put forward by the Scottish Law Commission is that Legal Rights should extend to both moveable and heritable property.

It may be some time before the Succession Bill becomes law and it is possible that children’s Legal Rights claims may be more modest than at present. However, this is an issue for landowners to watch closely. Early advice on Wills and estate planning should be sought to ensure any changes in legislation can be addressed.