Understanding the Differences Between English and Scottish Law in Wills and Probate

When it comes to matters of Wills and probate, understanding the legal nuances can be a daunting task. The intricacies of the law vary across different jurisdictions, and this is especially true when comparing English law and Scottish law. In this article, we will delve into the key differences between these two legal systems, shedding light on how they handle Wills and probate.

English Law: Presumption of Testamentary Freedom

In England, the law places a strong emphasis on the principle of testamentary freedom. This means that individuals have the right to dispose of their property as they see fit through their Will. However, there are certain exceptions to this principle, such as the rights of spouses or civil partners to make claims against an estate under the Inheritance Act 1975.

One notable feature of English law is the concept of “intestacy.” If someone dies without leaving a valid Will, their estate will be distributed according to the rules of intestacy. These rules determine who inherits the estate based on a fixed hierarchy of relatives. It’s important to note that intestacy rules may not align with an individual’s wishes, making the creation of a Will crucial to ensure assets are distributed according to one’s desires.

Scottish Law: Forced Heirship and Legal Rights

Scottish law, on the other hand, differs significantly from English law in terms of how it regulates the distribution of assets upon death. One key element of Scottish law is the concept of forced heirship. This means that certain close relatives, such as spouses, children, and grandchildren, have a legal right to inherit a specific portion of the deceased’s estate. The amount each heir is entitled to varies depending on their relationship to the deceased.

In addition to forced heirship, Scottish law also incorporates the notion of “legal rights.” These rights grant spouses and children a fixed proportion of the deceased’s moveable estate, regardless of what is stated in the Will. While legal rights cannot be entirely excluded, they can be reduced or eliminated by certain legal mechanisms.

Key Differences in Probate

Probate, the legal process of administering an estate after someone passes away, also differs between English and Scottish law. In England, executors named in the Will usually apply for a Grant of Probate to handle the administration. In Scotland, this process is known as Confirmation, and it involves applying to the court to officially confirm the executor’s authority to administer the estate.

It’s worth noting that the rules and procedures surrounding probate can be complex, and seeking professional advice is highly recommended to ensure a smooth process.

Understanding the differences between English and Scottish law in matters of Wills and probate is essential for anyone navigating these legal landscapes. Whether you reside in England or Scotland, having a comprehensive understanding of the relevant laws empowers you to make informed decisions when it comes to estate planning.

At The National Will Register, we recognise the importance of ensuring that your assets are distributed according to your wishes. By registering your Will, you ensure that your Will can always be found at the time it’s needed most. Our team are on hand to help every step of the way and can help answer any questions you have.

Disclaimer: This article provides general information about the differences between English and Scottish law in Wills and probate. For specific legal advice, it is always advisable to consult with a qualified professional.