Legitim and Prior Rights Scotland IHT UK 2026: Children's Legal Rights, s147 IHTA Relief, and Scottish Succession Law
Scottish succession law gives children a forced heirship right (legitim) to one-third or one-half of the moveable estate - which cannot be excluded by will. Section 147 IHTA 1984 relieves IHT where legal rights are claimed. Prior rights protect the surviving spouse in the family home (up to £473k). The RNRB applies to Scottish heritable property.
Scottish Legitim: Forced Heirship on Moveable Estate, Cannot Be Excluded by Will, s147 IHTA IHT Relief on Legitim Payments
LEGITIM (Succession (Scotland) Act 1964): children's legal right to 1/3 (if surviving spouse claims jus relictae) or 1/2 (no surviving spouse) of net moveable estate (NOT heritable/land). Children ELECT to claim, cannot have both legitim AND a will bequest (approbate and reprobate). S147 IHTA 1984: legitim payment treated as if made by the will from death; IHT calculated accordingly. Legitim within NRB: IHT = £0. Above NRB: 40% IHT. TNRB: NRB used against legitim reduces TNRB available for surviving spouse. PRIOR RIGHTS (s8-9 Succession Act 1964): spouse takes dwelling house up to £473k, furniture £29k, financial provision £25k, BEFORE estate distributed. RNRB: applies to Scottish family home 'closely inheriting' to direct descendants, same as England. UK IHT (IHTA 1984) applies nationwide, no separate Scottish IHT. Scottish commorientes rule (s31 Succession Act 1964): neither spouse presumed to survive the other if simultaneous death, opposite of English s184 LPA 1925.
| Aspect | Rule / Principle | Example / Scenario | Planning Guidance |
|---|---|---|---|
| Legitim: children's legal rights in Scotland under the Succession (Scotland) Act 1964 | LEGITIM, THE BAIRNS' PART: WHAT IS LEGITIM? Legitim is a FORCED HEIRSHIP RIGHT, it gives children an AUTOMATIC ENTITLEMENT to a share of the deceased parent's NET MOVEABLE ESTATE regardless of the terms of the will. The will CANNOT defeat legitim. THE LEGITIM FUND: the legitim fund = net moveable estate after deducting: (a) the prior rights of the surviving spouse/civil partner (s8-9, Succession (Scotland) Act 1964); (b) the jus relictae/relicti of the surviving spouse. LEGITIM SHARE: the children's collective entitlement is: (a) ONE-THIRD of the net moveable estate if there is a surviving spouse who claims jus relictae; OR (b) ONE-HALF of the net moveable estate if there is no surviving spouse (or the surviving spouse does not claim jus relictae). The legitim fund is divided EQUALLY AMONG ALL THE CHILDREN (including children of a previous marriage, all children of the deceased regardless of which marriage they are from). WHAT IS 'MOVEABLE PROPERTY' IN SCOTS LAW? Moveable property = all property other than heritable property. Heritable property = land and buildings situated in Scotland. In practice: bank accounts, investments (shares, funds, bonds), personal possessions, money, ALL MOVEABLE. The family home (heritable) is EXCLUDED from the legitim fund. CHILDREN MUST ELECT WHETHER TO CLAIM LEGITIM: a child ENTITLED to legitim is not forced to take it. They must ELECT to claim legitim. The election is typically made within a year of the death (though there is no strict time limit under Scots law, it becomes prescribed after 20 years). If the child DOES NOT claim legitim: the legitim right is abandoned, the child takes under the will instead (or under the intestacy rules if there is no will). THE ELECTION CHOICE, LEGITIM OR THE WILL: a child cannot have BOTH legitim AND a benefit under the will from the same estate (the principle of approbate and reprobate). The child must choose: either legitim (the legal right, proportion of moveable estate) OR the benefit given under the will. If the will gives the child more than their legitim entitlement: the child typically accepts the will and foregoes legitim. If the will is inadequate (e.g., the will leaves everything to the surviving spouse): the children may elect to claim legitim instead. | LEGITIM WORKED EXAMPLE: Angus dies domiciled in Scotland. Angus's estate: heritable property (family home in Edinburgh) = £500,000; moveable property (ISAs, shares, bank accounts) = £400,000. Surviving spouse: Margaret. Two children from marriage: Catriona (age 35) and Donald (age 32). PRIOR RIGHTS OF MARGARET (s8-9): dwelling house prior right = £473,000 (maximum). Family home is worth £500,000. Margaret is entitled to £473,000 of the home's value as a prior right (she takes the home entirely within the prior right value, i.e., she can take up to £473,000 of the home). REMAINING HERITABLE ESTATE: £500,000 − £473,000 = £27,000 (residue of heritable estate). Margaret's furniture prior right: £29,000 (value of furniture). Financial provision: £25,000 (there are children surviving, lower amount). TOTAL MARGARET'S PRIOR RIGHTS: approx. £473,000 + £29,000 + £25,000 = £527,000 (exceeds the moveable estate, so prior rights from moveable estate = the moveable estate in full, then any shortfall from heritable). LEGITIM CALCULATION AFTER PRIOR RIGHTS: moveable estate = £400,000. Prior rights from moveable: Margaret's financial provision (£25,000) and furniture (£29,000) = £54,000 from moveable. Remaining moveable after prior rights: £400,000 − £54,000 = £346,000. JUS RELICTAE (Margaret's legal right in moveable): one-third of remaining moveable (as children also have rights) = 1/3 × £346,000 = £115,333. LEGITIM FUND: one-third of remaining moveable (where spouse also claims) = 1/3 × £346,000 = £115,333. Divided equally between Catriona and Donald: £57,667 each. ANGUS'S WILL: left everything to Margaret. CATRIONA AND DONALD'S CHOICE: (a) accept the will → each receives nothing from the estate (all to Margaret). (b) ELECT LEGITIM → each receives £57,667. In practice: Margaret takes under the will (the house, plus investments not subject to legitim claims) and Catriona and Donald elect legitim (taking £57,667 each). TOTAL ESTATE DISTRIBUTION: Margaret via will/prior rights: the bulk of the estate. Catriona: £57,667 legitim. Donald: £57,667 legitim. | LEGITIM PLANNING IN SCOTTISH WILLS: (1) THE FUNDAMENTAL CHALLENGE FOR SCOTTISH WILLS: unlike English wills (where a testator can leave assets to whomever they choose with complete freedom), Scottish wills are subject to the FORCED HEIRSHIP rules of legitim and jus relictae. A testator who wants to leave everything to the surviving spouse CANNOT guarantee this if the children elect to claim legitim. Plan accordingly, the will must account for the possibility of legitim claims. (2) LIFETIME GIFTS TO CHILDREN, COLLATION: where a parent has made LIFETIME GIFTS to a child, and that child later claims legitim: the child may be required to bring the lifetime gifts INTO ACCOUNT ('collate' them) against their legitim entitlement. The lifetime gifts are deducted from the child's share of the legitim fund. Collation applies where the gift was made 'in satisfaction of' or 'on account of' legitim, it does not apply to independent gifts made without reference to legitim. (3) MOVEABLE PROPERTY PLANNING: legitim ONLY applies to moveable property, not to heritable (land and buildings). A testator who has significant HERITABLE PROPERTY (Scottish property) and wants to protect it from legitim claims: the heritable property can be freely disposed of by will (to the spouse, other children, grandchildren). Legitim cannot attach to heritable property. However: converting heritable property into moveable (e.g., selling the house and holding the proceeds as cash or investments before death) increases the legitim fund. (4) PRIOR RIGHTS AND THE FAMILY HOME: the surviving spouse's prior right to the family home (up to £473,000 in 2026) means the family home is usually preserved for the surviving spouse regardless of the will, even if the will says otherwise. For homes worth MORE than £473,000: the excess is distributable under the will (or intestacy rules) and is heritable property. (5) ENGLISH DOMICILE vs SCOTTISH DOMICILE: the Succession (Scotland) Act 1964 legal rights (legitim and jus relictae) apply where the DECEASED IS DOMICILED IN SCOTLAND at death. If the deceased is domiciled in England and Wales: legitim does NOT apply; English intestacy and freedom of testamentary disposition rules apply. Domicile determination is critical for Scottish/English cross-border estates. |
| Section 147 IHTA 1984: IHT relief where Scottish legal rights are claimed | S147 IHTA 1984, IHT AND SCOTTISH LEGAL RIGHTS: THE PROBLEM WITHOUT S147: if a testator's will leaves the entire estate to the surviving spouse (spouse-exempt, no IHT on the first death): (a) CHILDREN ELECT LEGITIM: the children successfully claim legitim from the estate, which removes assets from the spouse's inheritance. But these assets flow to the children (a chargeable transfer, not spouse-exempt). WITHOUT S147: the IHT on the testator's death would need to be recalculated to reflect the legitim payment to the children. But WHEN? The will said everything to spouse (IHT = £0 on death). The children later elect legitim (months after the death), creating a chargeable distribution to the children. TIMING MISMATCH: IHT is assessed at the date of death. But the election of legitim happens AFTER death. HOW DOES S147 WORK? S147 IHTA 1984 (as amended) provides: where property in the estate is transferred to satisfy a claim for legitim or jus relictae or jus relicti: (a) the transfer is treated as if it HAD BEEN MADE by the will from the outset; (b) IHT is calculated on the assumption that the estate was distributed (including the legitim payment) from the date of death; (c) where the legitim payment is WITHIN THE NRB: IHT = £0 on the legitim payment; (d) where the legitim payment exceeds the NRB: IHT at 40% on the excess; (e) the surviving spouse's entitlement is RECALCULATED after the legitim deduction, the spouse's entitlement (and the spouse exemption) is reduced by the legitim payment to the children. IN PRACTICE, S147 IHT CALCULATION: testator's estate = £1m. Will: all to spouse (IHT = £0). Children elect legitim = £200k (one-third of moveable). S147 CALCULATION: testator's estate for IHT = £1m. Treated as distributed: £200k to children (chargeable), £800k to spouse (spouse-exempt). IHT on £200k to children: £200k − NRB (£325k) = BELOW NRB → IHT = £0. TNRB: testator's NRB used £0 (£200k below NRB) → TNRB for surviving spouse = 100% × £325k = £325k. Net result: IHT on death = £0 (legitim within NRB). This is the SAME as if the will had always made a specific bequest of £200k to the children and the residue to the spouse. | S147 WORKED EXAMPLE, LARGE ESTATE: Gordon (age 75) dies domiciled in Scotland. Estate: Edinburgh house (heritable) = £600,000; investments (moveable) = £1.4m. Total estate = £2m. Surviving spouse: Patricia. Two children: Alasdair and Fiona. GORDON'S WILL: all to Patricia (IHT = £0, spouse exempt). CHILDREN ELECT LEGITIM: moveable estate = £1.4m. Prior rights (Patricia): furniture £29,000 + financial provision £25,000 = £54,000 from moveable. Remaining moveable: £1.4m − £54,000 = £1.346m. Jus relictae (Patricia): 1/3 × £1.346m = £448,667. Legitim fund: 1/3 × £1.346m = £448,667. Per child: £224,333 each. ALASDAIR AND FIONA ELECT LEGITIM → total legitim = £448,667 paid to children. S147 IHTA CALCULATION: Gordon's estate for IHT = £2m. S147 treats estate as if will provided: £448,667 to Alasdair and Fiona (chargeable); remainder (£2m − £448,667 = £1.551m) to Patricia (spouse-exempt). IHT on Alasdair and Fiona's share: £448,667. Gordon's NRB = £325,000. Chargeable amount: £448,667 − £325,000 = £123,667. IHT = 40% × £123,667 = £49,467. TNRB FOR PATRICIA: Gordon's NRB was partially used (£325k used against the £448,667 legitim). NRB remaining for TNRB calculation: Gordon's NRB = £325k; used £325k (against the £448,667, the NRB absorbed £325k). % used = 100%. TNRB = 100% × Patricia's NRB (£325k) = £325k available for Patricia on her death. GORDON'S RNRB: was the family home (heritable, £600k) included in the will? Yes, passed to Patricia via the will (heritable property, not within prior rights). Gordon's RNRB: £175k (home passes to Patricia, RNRB available where home passes to surviving spouse? RNRB: the home must 'closely inherit' to direct descendants. Passing to a spouse: RNRB is NOT used (the home is spouse-exempt; RNRB not available for spouse inheritance, but TRNRB is available for Patricia's estate). Gordon's RNRB unused → TRNRB = £175k for Patricia. NET IHT ON GORDON'S DEATH = £49,467 (on the children's legitim share above NRB). IHT is payable from the estate (typically from the moveable estate, the children's legitim is paid net of IHT). | S147 PLANNING, MANAGING LEGITIM AND IHT IN SCOTTISH ESTATES: (1) LEGITIM WITHIN THE NRB: if the legitim entitlement of the children is WITHIN THE NRB (£325k), IHT = £0 on the legitim payment. Plan the estate structure so that the legitim fund (moveable estate after prior rights and jus relictae) is ≤ NRB. Where the moveable estate is large: consider converting some moveable assets to heritable (buy Scottish property) to reduce the legitim fund below the NRB. NOTE: this reduces the legitim fund and reduces IHT, but increases the heritable estate which is not available for legitimate children's claims. (2) COORDINATE WITH TNRB AND TRNRB: where the testator uses part of the NRB against the legitim payment (above £0 but below NRB), the TNRB is PARTIALLY used, only the unused portion of the NRB transfers to the surviving spouse. Plan the estate to minimise the TNRB impact: (a) keep the legitim fund below the NRB (no IHT, NRB fully preserved); OR (b) accept the IHT on legitim above the NRB and calculate the reduced TNRB for the surviving spouse. (3) ENCOURAGING CHILDREN TO ACCEPT THE WILL: where the will leaves a generous specific gift to the children (MORE than their legitim entitlement), the children may prefer to take under the will and not claim legitim (approbate and reprobate principle). Draft the will to include a 'legitim discharge', a specific bequest to each child that, if accepted, bars the child from also claiming legitim. Ensure the will bequest is larger than the child's likely legitim entitlement to incentivise acceptance. (4) DOMICILE PLANNING IN CROSS-BORDER ESTATES: the legitim rules apply only to moveable property of a person DOMICILED IN SCOTLAND. A Scottish estate planner (with significant moveable assets) who is considering retiring to England should take advice on: (a) the point at which they acquire an English domicile of choice; (b) the impact on the children's legitim rights; and (c) the cross-border IHT planning implications. DEATH BEFORE CHANGING DOMICILE: legitim applies. DEATH AFTER ACQUIRING ENGLISH DOMICILE: legitim does not apply to moveable estate (English freedom of testation applies). The change of domicile may be a significant planning step for large Scottish estates. |
| IHT on a Scottish estate: heritable vs moveable, domicile, and RNRB in Scotland | IHT ON SCOTTISH ESTATES, OVERVIEW: UK IHT (Inheritance Tax Act 1984) applies to the WORLDWIDE ESTATE of a person DOMICILED IN THE UK at death. It applies regardless of WHERE IN THE UK the person was domiciled, England, Scotland, Wales, or Northern Ireland. THE SCOTTISH-SPECIFIC IHT CONSIDERATIONS: (1) DOMICILE IN SCOTLAND: IHT is imposed by the UK Parliament (IHTA 1984). There is no separate Scottish IHT, IHT is a reserved matter (UK-wide). A person domiciled in Scotland pays IHT on the same basis as an English domiciliary (40% on estate above NRB + RNRB, with all the same reliefs). Scots law does NOT change the IHT rates or reliefs. (2) HERITABLE PROPERTY IN SCOTLAND (LAND AND BUILDINGS): UK IHT applies to Scottish heritable property (land and buildings situated in Scotland) exactly as it does to English real property. The RNRB applies to a qualifying residential interest (QRI) situated in Scotland where it 'closely inherits' to direct descendants, the same rules as in England and Wales. A Scottish family home that 'closely inherits' to the deceased's children qualifies for the RNRB (£175k per person, or the net value of the home if less). (3) SCOTS LAW TRANSFER OF HERITABLE PROPERTY: heritable property in Scotland passes by CONFIRMATION (the Scots law equivalent of probate, a 'grant of confirmation' from the Sheriff Court or Court of Session). The confirmation process is the formal legal mechanism for transferring heritable title to beneficiaries. IHT is assessed and paid in the USUAL WAY (IHT400 + IHT421) regardless of whether the estate is in Scotland. HMRC DOES NOT distinguish between Scottish and English estates for IHT purposes, the same rules apply. (4) CROSS-BORDER ESTATES: where a deceased person has assets in BOTH Scotland and England (e.g., a Scottish domiciliary with a Scottish house and English investments): the SAME IHT rules apply to all assets (UK domiciliary = worldwide estate charged to IHT). The Scots law succession rules (legitim, prior rights) apply to the Scottish succession, but the IHT calculation covers the entire worldwide estate. (5) COMMORIENTES IN SCOTLAND: Scotland has its own commorientes rule, s31 Succession (Scotland) Act 1964 provides that where two persons die in circumstances suggesting simultaneity, NEITHER is presumed to have survived the other. This is the OPPOSITE of the English rule (s184 Law of Property Act 1925, older-first presumption). The Scottish rule: where spouses die simultaneously, neither the spouse exemption (s18 IHTA) nor the TNRB are affected (no survivorship, each estate is treated independently). Ensure Scottish wills have a 30-day survivorship clause (same as English wills) to protect the IHT position, but note the Scots law commorientes rule means the will's 30-day clause operates against the backdrop of s31 (not s184) where the facts are unclear. | SCOTTISH ESTATE IHT, FULL CALCULATION: Morag (age 78) dies domiciled in Scotland. Estate: Edinburgh family home (heritable): £800,000; ISA and shares (moveable): £600,000; cash savings (moveable): £200,000. Total estate = £1.6m. Surviving husband: Hamish (UK domiciled). Two children: Calum and Isla. Morag's will: Edinburgh home → Hamish (heritable, passes via will). ISAs and shares → Hamish (moveable, spouse-exempt). Cash savings → Calum and Isla equally (£100k each, children). PRIOR RIGHTS (HAMISH): Hamish's dwelling house prior right: up to £473k in the Edinburgh home. But Morag's will leaves the home to Hamish → Hamish takes the home under the will and does NOT need to claim his prior right in the dwelling house separately (the will supersedes prior rights IF the will gives the beneficiary more than the prior right). Hamish's prior rights are SATISFIED BY THE WILL where the will exceeds the prior right value. LEGITIM: moveable estate = £600k (ISAs) + £200k (cash) = £800k. Prior rights from moveable (if claimed): furniture £29k + financial provision £25k = £54k. Remaining moveable after prior rights: £800k − £54k = £746k. Jus relictae (Hamish's moveable legal right): Hamish DOES NOT claim jus relictae, he accepts the will (which gives him everything moveable and heritable). No jus relictae claim. Legitim fund: ONE-HALF of moveable (where surviving spouse does not claim jus relictae) = £800k × ½ = £400k. But Morag's will only leaves £200k of cash to Calum and Isla (not the full £400k legitim). CALUM AND ISLA'S CHOICE: (a) accept the will → each gets £100k cash. (b) elect legitim → each gets £200k (£400k / 2). Decision: they elect legitim (£200k > £100k). S147 IHT: Morag's estate = £1.6m. s147 treats as: £400k to Calum and Isla (chargeable); £1.2m to Hamish (spouse-exempt). NRB against legitim: £325k (covers the £400k legitim partially). IHT = 40% × (£400k − £325k) = 40% × £75k = £30k. RNRB on Edinburgh home: home (£800k) passes to Hamish (spouse), RNRB NOT used (not to direct descendants). TRNRB available on Hamish's death = £175k. TNRB: Morag's NRB used £325k / £325k = 100% → TNRB for Hamish = 0 (NRB fully used). Net IHT on Morag's death: £30k. | SCOTTISH WILL PLANNING, PRACTICAL GUIDE: (1) ALWAYS MAKE A WILL IN SCOTLAND: unlike England (where dying intestate means assets pass under the statutory intestacy rules, straightforwardly if unmarried or to spouse), dying intestate in Scotland means the prior rights, jus relictae, and legitim rules apply automatically. The family home is often taken in full by the surviving spouse's prior right, leaving little for the children unless there is significant moveable estate. A properly drafted Scottish will allows: (a) express provision for the children (incentivising them NOT to claim legitim, approbate and reprobate); (b) control over the heritable estate (not subject to legitim, can be freely directed); (c) coordination with IHT planning (NRB use, RNRB, TNRB). (2) INCLUDE A LEGITIM DISCHARGE CLAUSE: draft the will to include a provision that offers a specific bequest to each child. The bequest should be worth more than the child's likely legitim entitlement. Include a clause: 'If any child elects to claim legitim rather than taking the benefit under this will, the benefit given by this will to that child shall lapse.' This incentivises children to accept the will and waive legitim. (3) RNRB IN SCOTLAND: the RNRB is available for Scottish heritable property (family home) provided it 'closely inherits' to direct descendants. In a Scottish will: direct the Edinburgh (or other Scottish) family home to the children (directly or via a qualifying trust for the surviving spouse, IPDI) to preserve the RNRB. The RNRB calculation is the SAME as in England, £175k per person (or net home value if lower). (4) SEPARATE ENGLISH AND SCOTTISH WILLS: for cross-border estates (Scottish domiciliary with English assets, or vice versa), consider making SEPARATE WILLS: a Scottish will dealing with Scottish heritable property (under Scots law and confirming in Scotland); and an English will dealing with English assets (and worldwide moveable property of a Scots domiciliary). The two wills must be carefully coordinated so they do not conflict. (5) CONSIDER A SCOTTISH TRUST FOR LARGE MOVEABLE ESTATES: for large Scottish moveable estates where the legitim fund will be significant: a Scottish LIFERENT TRUST (equivalent to an English life interest trust) can hold the moveable estate for the surviving spouse for life, with the children as remaindermen. The children's legitim right may be satisfied by the trust, in Scots law, a trust provision for a child may discharge the legitim claim if properly structured. Take specialist Scottish private client advice. |
Legitim prior rights Scotland IHT UK 2026. Succession (Scotland) Act 1964: s8 (prior right in dwelling house, surviving spouse entitled to deceased's dwellinghouse or share of its value, up to £473,000 in 2026, as adjusted by SI from time to time); s9 (prior rights in furniture and financial provision, furniture up to £29,000; financial provision £50,000 if no children survive, £25,000 if children survive, 2026 figures); ss10-13 (jus relictae and jus relicti, surviving spouse's legal rights in the moveable estate: 1/3 if children also claim; 1/2 if no children claiming); ss11-13 (legitim, children's legal rights in moveable estate: 1/3 if spouse claims jus relictae; 1/2 if no spouse claiming); s14 (collation, bringing lifetime gifts into account against legitim). IHTA 1984 s147: special relief for Scottish legal rights, IHT is charged as if the legal rights payment was made under the will from the date of death. S18 IHTA: spouse exemption applies to jus relictae/jus relicti payments from the estate. S8A IHTA (TNRB): transferable nil-rate band, where the testator's NRB is used (partially) against the children's legitim payment, only the UNUSED fraction of the NRB transfers to the surviving spouse as TNRB. S8D IHTA (RNRB): Residence Nil-Rate Band, applies to qualifying residential interest (QRI) in Scotland just as in England. The QRI must be a dwelling house that has been the deceased's home at some point; it must 'closely inherit' to direct descendants (children, grandchildren, step-children, adopted children) on the death. Scottish commorientes: s31 Succession (Scotland) Act 1964, where the order of deaths cannot be established, neither person is presumed to have survived the other (both are treated as having died simultaneously with neither being the survivor). This is the OPPOSITE of the English rule (s184 Law of Property Act 1925, older-first presumption). For Scottish estates: the spouse exemption and TNRB may be affected by the commorientes rule if both spouses die simultaneously, take specific advice on a Scottish will's survivorship clause in light of s31. Approbate and reprobate (Scottish law principle): a beneficiary under a will cannot both 'approbate' (accept) the benefit given by the will AND 'reprobate' (reject) any accompanying burden or choice. In the context of legitim: a child cannot accept a will bequest AND also claim legitim, they must choose one. Confirmation in Scotland: the Scots law equivalent of English probate, a grant of confirmation from the Sheriff Court or Court of Session authorises the executor to ingather the estate and distribute it. Heritable property in Scotland (land and buildings) passes by recorded title transfer (Land Register of Scotland) following confirmation. Moveable property (investments, bank accounts) is distributed directly by the executor on production of the confirmation certificate. There is NO requirement for a separate English grant of probate for Scottish heritable property, and vice versa (an English grant is not needed in Scotland; a Scottish confirmation is needed for Scottish heritable property).
Frequently Asked Questions
What is legitim in Scottish succession law and can it be avoided?
Legitim (the 'bairns' part') is a forced heirship right under the Succession (Scotland) Act 1964 that gives children an automatic entitlement to one-third (if there is a surviving spouse claiming jus relictae) or one-half (if no surviving spouse) of the deceased parent's net moveable estate, regardless of the terms of the will. Legitim cannot be excluded by a will. Children must elect whether to claim it, if they take a bequest under the will worth more than their legitim share, they will usually choose the will instead (they cannot have both, approbate and reprobate). A testator can effectively discourage legitim claims by leaving each child a specific bequest larger than their likely legitim entitlement.
How does s147 IHTA affect IHT when children claim legitim from a Scottish estate?
Section 147 IHTA 1984 provides that where assets from the estate are transferred to satisfy a legitim claim, the transfer is treated as if the will had always made that provision, IHT is recalculated accordingly. If the legitim payment to the children is within the deceased's available NRB (£325k), no IHT is charged on the legitim payment. If the legitim exceeds the NRB, IHT at 40% applies to the excess. The surviving spouse's inheritance is reduced by the legitim payment, reducing the amount of the estate covered by the spouse exemption, but increasing the TNRB potential (since more of the NRB may be left unused if the legitim is within the NRB).
Does the Residence Nil-Rate Band apply to Scottish property?
Yes. The RNRB (£175k per person) applies to a qualifying residential interest (QRI), the family home, situated anywhere in the UK, including Scotland. A Scottish family home that 'closely inherits' to the deceased's direct descendants (children, grandchildren) on death qualifies for the RNRB in exactly the same way as an English property. The RNRB rules (value limit, downsizing provisions, TRNRB) are UK-wide and apply identically to Scottish heritable property.
What are prior rights in Scotland and how do they affect IHT?
Prior rights (ss8-9 Succession (Scotland) Act 1964) are automatic entitlements of the surviving spouse to claim: the family home (up to £473,000, 2026 figure); furniture in the home (up to £29,000); and a financial provision (£25,000 if children survive; £50,000 if no children). These arise BEFORE the estate is distributed, they take priority over the will and over all beneficiaries. For IHT: prior rights satisfied from the estate count as distributions to the surviving spouse, covered by the spouse exemption (s18 IHTA). Prior rights do not increase IHT; they reduce the estate that would otherwise pass under the will (which may affect the NRB and RNRB calculations).
Should I have a Scottish will or an English will if I live in Scotland?
If you are domiciled in Scotland: a Scottish will is essential for Scottish heritable property (land and buildings in Scotland), Scottish heritable title transfers through confirmation (not English probate). A Scottish will can also deal with worldwide moveable estate. For significant cross-border assets (Scottish home + English investments), consider separate Scottish and English wills, one for Scottish heritable property, one for English/worldwide moveable assets, carefully coordinated to avoid conflict. The IHT calculation is UK-wide regardless of where the will is made: HMRC assesses the worldwide estate of a UK domiciliary under IHTA 1984.
Based in Scotland? Your Will Must Address Legitim to Protect Your Wishes
Scottish succession law gives your children an automatic right to part of your moveable estate, a Scottish will that includes specific bequests to each child (more than their legitim entitlement) can incentivise them to take under the will and waive legitim. WillSafe kits for straightforward estates; specialist Scottish solicitors for legitim planning and cross-border estates.
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