As we approach the Platinum Jubilee, Her Majesty The Queen will no doubt be reflecting upon her last 70 years in service to the people of the United Kingdom, the Realms and the Commonwealth.
The Queen is the longest reigning monarch in British history and may even become the longest reigning monarch of all-time. After such a long period of leadership, The Queen will be considering her future and preparing for the time when she will hand over leadership of the monarchy to her successor. Luckily for The Queen there is a clear set of rules in place, made up of a combination of common law, family descent and Parliamentary statute, which govern succession to the throne. As a matter of law, Prince Charles will become King the moment that his mother, Her Majesty the Queen, dies. While certain formalities will need to be observed to document the event, Prince Charles will then inherit, among other things, the throne and become the Sovereign and head of the Royal Family with all of the rights and responsibilities that that entails.
Not unlike succession in the Royal Family, there are in fact rules which govern succession in every other family in the UK. While the rules are different between Scotland and the rest of the United Kingdom, this blog will focus on succession rules in Scotland.
Who inherits your 'estate'?
While its composition will likely be different to that of members of the Royal Family, everyone in the UK will have an 'estate' i.e., property and assets, of some sort in their name when they die. Thought needs to be given to what happens to that estate when you die. In Scotland, the rules that will apply will depend on whether or not you left instructions for what is to happen to your estate when you die i.e., whether you make a will or not.
If you die without leaving a will then your estate will be distributed, for the most part, according to the rules contained in the Succession (Scotland) Act 1964 (the "1964 Act"). The main points to note about the 1964 Act are that
(i) it is old and may not distribute the estate as you would otherwise have wanted; and
(ii) it takes no account of what your intentions may have been. Another important point to note about dying without a will is that under the 1964 Act, your estate may not pass to the people you would expect, for example, it does not necessarily pass outright to your spouse.
If you put a will in place, then the rules that apply are different. Legally, provided the will is valid and reflects your wishes, then its terms will be observed in the distribution of your estate. The main difference between estates distributed under the 1964 Act and those under a will is that, with the latter, you have control over who 'succeeds' to your estate: you have the power, subject to certain restrictions, to determine who will inherit what i.e., who the 'beneficiaries' will be, and who will be responsible for administering the distribution of your estate according to your will.
Do the rules have anything in common?
As with most things, 'the devil is in the detail'. While the rules that govern succession are different depending on whether your estate is distributed under a will or under the 1964 Act, both sets of rules do share one thing in common in that they both have to take account of 'legal rights'. Under Scots law a surviving spouse or child (including an adopted child) has a legal right to inherit a share of your estate. Legal rights act as a safeguard to protect spouses and children from being disinherited by providing a right to claim a share of your 'moveable estate', i.e., the 'cash' part of the estate (after all debts and expenses have been settled. While the mechanics of how legal rights affect the distribution of your estate are different, depending on whether you leave a will or not, they can still have a material impact. An important point to note is that in the UK, legal rights are unique to Scotland – they do not exist under English law.
What is the key message?
While it may surprise many the reality is that whether one is a member of the Royal family or any other family, there are rules in place which govern who will inherit your estate when you die. The key point to note is that making a will, or the decision not to make one, has certain consequences: making a will gives you control over your 'succession' planning, where not making a will wrenches control away from you.
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