As family structures become more diverse, the laws guiding succession can sometimes cause more problems than they solve.
The Succession (Scotland) Act was created to address these issues. The Act contains many changes intended to modernise succession law and make sure it is “up to date, fairer, clearer and more consistent”.
For example, before this update if you were divorced but had not changed your Will to reflect this, your ex-partner would still inherit from your estate when you died, no matter how long you had been separated.
The Act is being introduced in two parts, with only Part 1 currently in effect. Consultation on Part 2 is ongoing and will cover what happens when someone dies without a Will and how much a spouse, civil partner or child should be entitled to, regardless of what a Will says. Although there is no set date for this second phase, it is expected to be launched in 2017.
The changes so far
Some of the most relevant changes are:
• An ex-spouse or civil partner will no longer be able to inherit from your estate if you were divorced or separated unless your Will makes specific provision for them.
• The courts will have the power to rectify a Will where it can be established that it does not reflect the intention of the person who died. However, if the deceased has drafted their own Will, this will not be the case.
• The rule which allowed an earlier Will to be used if a Will drafted at a later point is revoked has been abolished.
• Where a person who is set to inherit from an estate dies before the person who has written the Will, their provision will go to their surviving children once the owner of the estate dies – provided the Will does not specifically state otherwise.
• Provided they have acted in good faith, there is now protection for executors, trustees and individuals involved in the administration of an estate in certain circumstances where there has been an error in the distribution of assets.
These changes have been introduced to give those who don’t have an up-to-date Will, or no Will, further protection.
The only way to truly ensure your estate goes to the people you choose in the manner of your choosing is to get professional advice on all aspects of succession and estate planning.
If you would like to find out more about writing a Will, we would always recommend that you contact a reputable solicitor.
This article has been adapted with permission from an original piece written by Sue Arrowsmith Rodger (Sarrowsmithrodger@pagan.co.uk) from Pagan Osborne Solicitors. This article can be found here: www.paganosborne.com/news-and-events/the-answer-to-who-inherits-after-im-gone-is-getting-simpler