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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11745
Experience:  30 years as a practising solicitor.
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My uncle lived and died in Scotland. His will does not mention

Customer Question

My uncle lived and died in Scotland. His will does not mention his estranged son whose whereabouts have been unknown for several years. Can probate be applied for?
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
Yes, the Scottish equivalent of probate is called confirmation and it can be applied for by the executor to the estate. However under Scots law the son is entitled to claim on the estate. The claim is for "legal rights" and would be for a share of half of the moveable estate (everything except houses and land) assuming there is no surviving spouse. If there is a surviving spouse he claim is for a share of one third. The extent of the share depends on whether your uncle has other children.
A reservation would have to be made for a legal rights claim which can be made for a period of 20 years from th date of death.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 2 years ago.
DearCustomer Thank you very much for your rapid response. I believe that my Aunt's first priority is to find her son; ask him if he would like a third (less the house) of his father's estate. If he does not want it, he will need to sign a statement. If she is unable to find her son, she will need to put one third of the estate (less the house) in trust Do you agree? Richard.
Expert:  JGM replied 2 years ago.
Assuming he is an only child that would be correct insofar as the son could sign a disclaimer of legal rights.
If he can't be found then a missing beneficiaries policy could perhaps be taken out which would allow the whole estate to be finalised and if he turned up in the future the insurance policy would pay out the legal rights. The cost of such a policy would have to be examined in the particular circumstances.