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Prior Rights

These are rights of a spouse or civil partner to some of the estate of a deceased person who dies without leaving a Will.

The law only makes provision if there is no Will. If the deceased has a Will which disposes of all of his/her estate, Prior Rights are irrelevant. But they can apply to a partial intestacy.

Example A - Partial intestacy

George and Dorothy are married. George dies leaving a Will which gives his house and contents to Dorothy, the balance in his Bank of Scotland account to Son X, the balance in his RBS account to Son Y and his stocks and shares to Son Z. George thought that these were his whole estate, but he forgot he had a life policy on his own life with a sum assured of £100,000. Prior Rights can be claimed by Dorothy in respect of that policy. Her claim would be £42,000 (see below). The balance of £58,000 would go to X, Y and Z equally (see our leaflet on Wills).

Property Right and Money Right

Prior Rights are divided into two groups: the property right and the money right.

The property right is restricted to the right to inherit the home in which the spouse/civil partner lived up to a value of £473,000. If there is more than one property, the survivor can elect which one he/she will inherit. If the property is worth more than £473,000, the survivor has three alternatives: (First) accept that part of the house will be owned by his/her children or (if there are none) by whatever relatives inherit the excess; (Second) purchase the excess from whoever was inheriting it; (Third) take £473,000 in cash). The property right includes the contents up to a value of £29,000. If the contents are worth more than £29,000, the excess is dealt with in the same way as an excess on the property value.

The money right is to inherit cash up to £50,000 if there are children of the deceased surviving (or £89,000 if there are no surviving children). Note that this refers to the deceased’s children who may or may not be the children of the survivor.

Will Waiver

Prior Rights can, in certain circumstances, improve the position of a spouse/civil partner. This is where the deceased’s Will leaves everything to the survivor and nothing to the children.

Example B - Will waiver

George and Dorothy are married and have two adult sons. George leaves his whole estate to Dorothy in his Will. He considers that his first duty is to Dorothy and knows that Dorothy can leave everything to their sons on her death. His estate comprises a house at £325,000, contents worth £20,000 and a joint bank account with a balance of £80,000. After George dies, Dorothy learns that one of her sons, who was declared bankrupt just before his father died, will be claiming Legal Rights through his trustee in bankruptcy. When the other son hears this, his wife persuades him that he should claim too. If both claims are met, this would deprive Dorothy of £20,000-worth of George’s estate (£6,666-worth of house contents and £13,333 in cash). Having carefully checked the terms of George’s Will, Dorothy’s solicitor advises her that the Will makes no provision for default beneficiaries. In other words, it mentions Dorothy to receive the whole estate, but does not make any provision for the situation where Dorothy predeceases George. The solicitor advises Dorothy to waive her entitlement under the Will, thus creating an intestacy (same situation as if George had made no Will - George’s Will does not deal with his estate). So the law of intestate succession applies. Dorothy can now claim Prior Rights and take the whole estate. Prior Rights (where they apply) take precedence over Legal Rights.

Nothing on this website constitutes legal advice and EBS Trustees accepts no liability for any actions taken by any individual in reliance of what is written here.

Lanark Prior Rights - Glasgow Prior Rights - Lanarkshire Prior Rights - Edinburgh Prior Rights Carluke Prior Rights Biggar Prior Rights - Motherwell Prior Rights Wishaw Prior Rights Hamilton Prior Rights

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