New legislation provides welcome modernisation, but does reinforce the importance of a Will
It’s extraordinary to think that, until recently, Scotland’s governing legislation on trusts and succession dated back over 100 years – to an Act passed in 1921, when many aspects of family, business and civic life were fundamentally different. It’s hardly surprising that many people thought an update was years (or decades) overdue.
The good news is that the Trusts and Succession (Scotland) Act 2024 brings in a more modern legal framework. Whilst many of the provisions are not yet in force, the Act addresses many points that were outdated or potentially unfair.
Key measures
As ever with anything involving trusts, much of the new 2024 Act relates to detailed technical points that may never affect your day-to-day life. This includes points on how trustees perform their roles, make decisions or are appointed.
On the other hand, the Act also has some measures that could affect families everywhere and others that you may have seen in media headlines.
Here are five interesting takeaways:
- The Act has changed the order of succession when someone dies without a Will. Spouses (including separated spouses) now rank higher than previously and where there are no surviving children, may inherit the whole estate, ahead of blood relatives. This makes the case for making a Will stronger than ever; it also makes the need to deal with Legal Rights and other succession rights in a Separation Agreement even more important.
- The Act also changes the law on claims by unmarried, cohabitating partners, if their partner dies without a Will. Cohabitating partners still have no automatic entitlement by law. However, under the new provisions, a cohabitee could now in some circumstances, and at the discretion of the Court, take the whole estate – and now have 12 months from date of death to make a claim, rather than six months. Again, another reason to provide clarity to your loved ones in a Will.
- It will be easier for co-trustees to remove a trustee where they’re incapable or have been convicted of certain offences. Professional trustees can now be removed from office by a majority of non-professional trustees where they are no longer a member of a regulated profession.
- Beneficiaries of a trust will have new rights around, for example, the information provided to them and the removal of a trustee.
- Finally, in a change that relates to a notorious case, people convicted of murder or culpable homicide can now be prevented from acting as their victim’s executor.
