Restrictions on successions – special rules

1 Under the law of this Member State, do special rules impose, for economic, family or social considerations, restrictions concerning or affecting the succession in respect of immoveable property, certain enterprises or other special categories of assets located in this Member State?

Under Scots law, succession to heritable property situated outwith Scotland is governed by the laws of the jurisdiction in which it is situated.

For property situated in Scotland, where there is a will, as a protection from disinheritance, the surviving spouse or civil partner has a legal right to one-third of a deceased’s moveable estate (moveable property such as cash, furniture etc) if there are ‘issue’ (children) or to one-half of the moveable estate if there are no issue. The issue share one-half of the moveable estate if there is no surviving spouse or civil partner or a third if there is a surviving spouse or civil partner.

Where a person dies without a will, the following rules apply: under the Succession (Scotland) Act 1964.

Prior rights

After debts have been paid, the first call on the estate is the surviving spouse’s or civil partner’s prior rights which comprise the right to

• the home (immoveable property) in which s/he is living up to a value of £473,000
• furniture to a value of £29,000
• the sum of either £50,000 or £89,000, depending on whether the deceased left children

Legal rights

After prior rights have been met, the next call on the estate is legal rights. Legal rights can only be claimed from the deceased’s moveable property.

The surviving spouse or civil partner has a legal right to one-third of a deceased’s moveable estate if there are ‘issue’ (children) or to one-half of the moveable estate if there are no issue. The issue share one-half of the moveable estate if there is no surviving spouse or civil partner or a third if there is a surviving spouse or civil partner.

Remainder of the estate

What remains of the estate is distributed to remoter relatives in accordance with section 2 in the 1964 Act.

2 Under the law of this Member State, do these special rules apply to the succession in respect of the above-mentioned assets irrespective of the law applicable to the succession?

Where a person dies domiciled in Scotland, succession to that individual’s heritable property is determined by the law of the country in which the heritable property is situated. Succession to the deceased’s moveable assets is determined by Scots law regardless of where the assets are situated.

3 Under the law of this Member State, do special procedures exist to ensure compliance with the above-mentioned special rules?

Under Scots law, a deceased’s estate is usually administered by an executor following a grant of Confirmation from the sheriff court. An executor is in a special relationship with beneficiaries when administering an estate and has a number of duties to fulfill, including to ingather the estate of the deceased, take title to it through obtaining confirmation, to pay any debts and distribute the remainder of the estate to beneficiaries.

The relationship between an executor and a beneficiary is fiduciary in nature. No executor may place him/herself in a position where his or her interest and his or her duty to a beneficiary are in conflict. If an executor or trustee places him/herself in such a position, this may amount to a breach of trust for which a beneficiary may have legal recourse to a court.