A Practical Guide to Legal Rights in Scotland

The concept of ‘legal rights’ is at its heart seemingly simple; giving certain parties a fixed entitlement to a deceased’s estate. Regardless of how straightforward it seems, in practice, legal rights are a veritable minefield. This book is intended to act as a roadmap to help practitioners navigate through those proverbial mines. This practical guide is designed to collate the key principles, as well as highlight some of the quirks or greyer areas where there is little or inconsistent judicial authority. Legal rights issues can broadly be split into three pillars, namely “who” is entitled, “what” they are entitled to and “how” legal rights are dealt with. This book will deal with each in turn, pinpointing important principles and issues, whilst providing practical solutions. The “who” chapters will deal with issues around modern families, minor, missing or incapax beneficiaries and duties to notify. It will then consider how the net moveable estate is ascertained, when heritable property may be moveable, when gifts may be taken into account, and what deductions are to be made. Finally, it will consider how legal rights are dealt with, including issues of forfeiture, collation, interest, the interaction with various taxes, and what planning may be undertaken to potentially mitigate such an entitlement. Whilst it is aimed at those who may have less experience in dealing with all the complexities legal rights have to offer in practice, it is also designed to be a checklist for even the most experienced practitioners. ABOUT THE AUTHOR Sarah-Jane advises on all aspects of Private Client law, with a particular interest in complex or contentious trusts and estates. She is recognised as a “Key Lawyer” by Legal 500 for both ‘Personal Tax, Trusts & Executries’ and ‘Contentious Trusts & Probate’. Sarah-Jane is a full member of the Society of Trust & Estate Practitioners (STEP), having previously won a STEP Worldwide Excellence Award (Trusts Law & Practice) and gained her STEP Diploma (Scotland) and Advanced Certificate (Trust Disputes), both with distinction. She is also a current member of the STEP Scotland Branch Committee and is dedicated to furthering the profession through STEP and other avenues. Having previously achieved a First-Class Honours Degree in Mathematics & Economics, before entering her career in law, Sarah-Jane uses those problem solving skills alongside her private client experience to reach practical resolutions to disputes. She has hands-on experience in negotiation and mediation, and in 2021 won the Core at 20 Mediation Challenge. She regularly speaks about dispute resolution for trustees and executors, in particular on the many issues surrounding legal rights. CONTENTS Chapter 1: Reminder of Basic Principles Chapter 2: Who Is Entitled to Legal Rights? Chapter 3: Issues With Certain Claimants Chapter 4: Duty to Notify Chapter 5: Establishing the Moveable Estate Chapter 6: Inclusion of Assets Held by Another Party Chapter 7: When Is “Heritable” “Moveable”? Chapter 8: Conversion Chapter 9: Partnership Property Chapter 10: Valuing the Moveable Estate Chapter 11: Issues With Valuing the Moveable Estate Chapter 12: Deductions From Gross Moveable Estate Chapter 13: How Are Legal Rights Dealt With? Chapter 14: Elections & Forfeiture Chapter 15: Collation Chapter 16: Interaction With Inheritance Tax & Other Taxes Chapter 17: Defeating Legal Rights Chapter 18: The Future of Legal Rights