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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 6773
Experience:  27 years as a practising solicitor.
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Scottish legal rights

Customer Question

BACKGROUND info:

My father died last summer. He died domiciled in Scotland, UK. 

In his will he left everything to one of his children. Because he had other children and was domiciled in scotland his estate will be distributed according to legal rights (no spouse only children).

His estate mainly comprised of:

1) Shares in a privately held company.

2) An investment account held in Texas, USA with a TRANSFER ON DEATH (TOD) designation. Designating the same child named on his will.

I have been told that according to Scottish legal rights all his assets including the USA TOD account form part of his estate which would then be split according to legal rights. According to US lawyer no Scottish court could reach the TOD investment account money to satisfy any obligation under Scottish law. Yes, Scottish law might include the value, tax it, etc., but that liability is all estate liability. Under US law, the TOD investment account will go straight to the designated beneficiary and is not part of the estate for purposes of satisfying estate debt and obligations. Is this correct?

MY QUESTIONs are:

1)Is the named beneficiary to the TOD account in the USA obliged by law (Scottish? US? or Both?) to hand over the funds to the estate executor? According to US law NO.

2) Will the TOD account be considered part of the distributable estate? According to US law NO only for tax purposes and for establishing the gross value of the estate.

3) If yes, but the beneficiary of the TOD chooses not to do so what could be the repercussions to him in Scotland? USA?

4) do reciprocal legal arrangements exist that would enable a scottish courts' decision to be enforced in USA? I am a uk resident by the way.
5) could a Scottish lawyer ask for the US TOD account to be frozen before confirmation is obtained and be granted such a request?

Thank you


Many thanks.
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
What is your specific question?
Customer: replied 1 year ago.
Sorry here is the full text


BACKGROUND info:

My father died last summer. He died domiciled in Scotland, UK. 

In his will he left everything to one of his children. Because he had other children and was domiciled in scotland his estate will be distributed according to legal rights (no spouse only children).

His estate mainly comprised of:

1) Shares in a privately held company.

2) An investment account held in Texas, USA with a TRANSFER ON DEATH (TOD) designation. Designating the same child named on his will.

I have been told that according to Scottish legal rights all his assets including the USA TOD account form part of his estate which would then be split according to legal rights. According to US lawyer no Scottish court could reach the TOD investment account money to satisfy any obligation under Scottish law. Yes, Scottish law might include the value, tax it, etc., but that liability is all estate liability. Under US law, the TOD investment account will go straight to the designated beneficiary and is not part of the estate for purposes of satisfying estate debt and obligations. Is this correct?

MY QUESTIONs are:

1)Is the named beneficiary to the TOD account in the USA obliged by law (Scottish? US? or Both?) to hand over the funds to the estate executor? According to US law NO.

2) Will the TOD account be considered part of the distributable estate? According to US law NO only for tax purposes and for establishing the gross value of the estate.

3) If yes, but the beneficiary of the TOD chooses not to do so what could be the repercussions to him in Scotland? USA?

4) do reciprocal legal arrangements exist that would enable a scottish courts' decision to be enforced in USA? I am a uk resident by the way.
5) could a Scottish lawyer ask for the US TOD account to be frozen before confirmation is obtained and be granted such a request?

Thank you
Expert:  JGM replied 1 year ago.
As I understand it, a transfer on death direction is similar to an assignation of rights or a trust provision whereby the beneficiary is a named individual and the holder of the policy or investment is authorised to pay on the death of the holder.

That type of arrangement, subject to scrutiny of its exact terms, will mean that the investment bypasses the estate and passes directly to the named beneficiary. The executor has no jurisdiction to ask for the monies.

The value of the investment will be included in the estate inventory for IHT purposes. The investment will not form part of the legal rights fund.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 6773
Experience: 27 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you.I am still concerned as According to various articles that I have read in relation to scottish legal rights it would seem that the only thing that is excluded from the legal rights claim is heritable estate whereas all worldwide moveable estate is included. In case you wonder where I read this here is the link: http://www.turcanconnell.com/media/61007/legal_rights_in_scotland.pdf/

Would you agree with this or continue to think that the US TOD investment account held in TX USA would still not form part of the estate?

Many thanks
Expert:  JGM replied 1 year ago.
I am aware that all moveable property at date of death is subject to a legal rights claim. The difference here is that the property transfers not to the estate but by assignation to the named beneficiary.
Customer: replied 1 year ago.
that is great news. I am just amazed that you are giving me such different information to that of the law firm administering the estate which suposedly is top 500 and which insists that when it comes to Scottish legal rights a US TOD Account is included in the estate regardless of the fact it was assigned to a beneficiary. They say that the funds in the account form part of the estate and as such will be used to satisfy legal rights. Any other arguments you may have as to why the TOD would not form part of legal rights fund would be much appreciated.
Expert:  JGM replied 1 year ago.
As I said initially my answer is subject to the exact terms of the instrument, but as a general rule, Investments in trust or which have been assigned do not form part of the estate for distribution purposes.
Customer: replied 1 year ago.
.
Customer: replied 1 year ago.
I hope that by instrument you mean the TOD disclosure agreement which is follows

Quote


Name of bank TOD Disclosure Agreement

Designation of beneficiary
Date: xxxxx
Account number: xxxxxxxx

The following designation of beneficiaries is a NEW designation. By signing this TOD agreement, the account holder understands that no beneficiary designation is effective until received and accepted by "bank name" carrying the TOD account.

Table here containing information about beneficiary ie. Full name, date of birth, nationality, address,relationship to account holder, name of trustees if any,social sec number,percent ownership of account of beneficiary = 100%

I have read the TOD disclosure agreement carefully and I understand and agree to it's terms.

Signature of account holder
Date signed


Unquote

Your thoughts would be much appreciated

Expert:  JGM replied 1 year ago.
Yes, I consider that to be similar to a trust or assignation and do not consider that this account would form part of the distributable estate.
Customer: replied 1 year ago.
It makes sense to me and hope you are right. If the TOD account is not included as part of the estate for distribution purposes would it benefit from a share of the IHT allowance ie £325k . If so what percentage would that share be based on I.e if TOD = 50% of total value of estate would it then receive 50% of the allowance?
Expert:  JGM replied 1 year ago.
The account is taken into account in calculating the gross estate.
Customer: replied 1 year ago.
thank you and I understood that but what remains unclear to me is wether or not some of the IHT tax allowance i.e £325k will go towards reducing the IHT liability on the TOD account? Or are you saying that because the TOD account is not part of the distributable estate then it can't benefit from any allowance? Many thanks
Expert:  JGM replied 1 year ago.
The total estate, including this account is added up and the allowance of £325000 deducted. If the total estate is less than £325000 no tax is payable. Anything over £325000 is taxed.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 6773
Experience: 27 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

Good morning,


I was wondering if Anti-Avoidance or Collation inter liberos provisions in scottish law would view the TOD designation as a means to avoid satisfying legal rights?

 

I found this extract:

 

The 1975 Act contains anti-avoidance provisions to prevent potential applicants' rights being defeated by lifetime transactions. Where the court is satisfied that a disposition before death or a contract to leave property on death was made for less than full value with the intention of defeating an application then it may make an order against the donee requiring payment towards the award of financial provision. Only dispositions made within six years prior to the date of death are vulnerable to an anti-avoidance order.

 

Perhaps i should just ask you if you can think of anything in Scots law that could force the US Texas TOD account to be included in the estate for distribution purposes?

 

Many thanks

 

 

 

Expert:  JGM replied 1 year ago.
Please give me the link to what you have been reading. I have no idea what Act the 1975 Act is and the terminology is not Scots law. I wonder if this relates to another jurisdiction?
Customer: replied 1 year ago.

it is from a discussion paper on succession 1997


 


http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad= rja&ved=0CD0QFjAC&url=http%3A%2F%2Fwww.scotlawcom.gov.uk%2Fdownload_file%2Fview%2F88%2F&ei=R3r2UKnQEsOn0AWGuYGYDg&usg=AFQjCNEs3pGqXw2GgAhmaCZ6sEp5CpZEvw

Customer: replied 1 year ago.

sorry my mistake, you are right this is The Inheritance (Provision for Family and Dependants) Act 197525 which applies in England and Wales



in that case can you think of anything in Scots law that could force the US Texas TOD account to be included in the estate for distribution purposes?

Expert:  JGM replied 1 year ago.
No, nothing as there was a lifetime destination created for this account.
Customer: replied 1 year ago.

forgive my ignorance but what does a lifetime destination mean?

Expert:  JGM replied 1 year ago.
The beneficiary is nominated otherwise than by virtue of a will.
Customer: replied 1 year ago.

I just thought I would share that i am very impressed at how quickly you responded to the TOD question in relation to Scottish legal rights. It is taking days for a "legal 500" Scottish law firm to give me an answer on this. If you are right and hope you are it would really put them to shame and emphasize what a great service you offer in comparison. Thank you again!

Expert:  JGM replied 1 year ago.
You are welcome.
Customer: replied 1 year ago.

I just found the following statement whilst reading

 

http://www.publications.parliament.uk/pa/ld200910/ldselect/ldeucom/75/7505.htm

 

"The estate available for distribution to heirs comprises only property owned by the deceased at the time of death"

 

1)if i understand this correctly it means that any assets owned by my father on death would be part of the distributable estate. As the TOD account had a transfer on death designation it would no longer be his and therefore not distributable.Correct?

 

2) Funnily enough on reading this I believe that the Scottish law firm told me that anything my father owned before death (not on death) would be included in the estate for distribution purposes regardless of a transfer of a death designation. Obviously the TOD account was my father's whilst alive. Could this argument be correct?

 

 

 

Expert:  JGM replied 1 year ago.
The normal rule is that a person's property forms their estate on death and that estate is distributed in accordance with the will and/or the law, such as legal rights.

The exceptions to this are where:

1. Property is subject to a special destination to a survivor. This is often the case with a house which is in joint names.
2. Property is placed in trust and passes to the beneficiary.
3. Property is assigned to a named person.
4. A nomination is made in respect of a pension or other investment.

The investment you speak of is likely to come within 3 or 4. The fact that the investment company recognises that the investment is to pass directly on death reinforces this view. The whole terms and conditions would be subject to examination but the extract you quoted earlier certainly points to the investment being created for the benefit of a named person outwith the estate.

Customer: replied 1 year ago.

Thank you very much for that.


 


I have managed to dig out exactly what they told me and here it is:


 


"The assets available for a Legal Rights claim are ascertained at the date of death. So, the shares and bank accounts (and the US TOD Accounts will be included – TOD is simply a means of avoiding probate; they were a moveable asset of your father’s as at xxdatexx) are all included in the estate, for Legal Rights purposes. From this can be deducted moveable debts, Inheritance Tax, funeral costs and executry expenses involved in obtaining Confirmation and realising assets."


 


What would you say to that?


 

Expert:  JGM replied 1 year ago.
I have nothing to add to what I have answered previously. The account nominated a particular beneficiary at the date of death.
Customer: replied 1 year ago.

Thanks

 

They acknowledge the fact that it bypasses probate but nothing about bypassing legal rights! it really bothers me that they have always talked about the TOD as if it was of no real importance and made no difference whatsoever to the way the estate would be distributed.

 

Can i therefore take it that you disagree with their statement regarding the TOD being part of the distributable estate? any idea as to why they do not reach the same conclusion as yourself?

Expert:  JGM replied 1 year ago.
Yes I disagree. I can't speculate on their advice. I haven't seen all the papers and can only reiterate my view above based on what you have told me.
Customer: replied 1 year ago.

Thank you.


 


All they have seen is an English Will with only one beneficiary named on it.


They are aware of the TOD and the designated beneficiary (same as on will) but have not seen the actual TOD disclosure agreement. Then again neither had you which did not prevent you from reaching the same conclusion after i posted the wording of the agreement on here.


 


 

Expert:  JGM replied 1 year ago.
Noted
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 6773
Experience: 27 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

Hello again.

 

Would I be right in saying that any Inheritance tax due on the total value of the estate (which would include the value of TOD account) would only be paid out of estate assets? in order words as the TOD account is not part of the estate any liability/obligation falling on the estate such as IHT would need to be satisfied using estate funds and that the beneficiary of the TOD account would not be expected or could not be forced to use the TOD funds to pay any IHT?

 

Many thanks

Expert:  JGM replied 1 year ago.
As far as I can recall these sorts of investments do appear on the estate inventory and are used in the calculation of IHT.
Customer: replied 1 year ago.

thanks


 


yes i understand from your previous answers that the value of the account would be used in calculating the IHT liability on the total estate but my question is more to do with wether or not the TOD funds would be liable for the IHT debt on the estate as from what you have also said the TOD account is not part of the estate hence not liable for estate debt/obligations?

Expert:  JGM replied 1 year ago.
No it wouldn't.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 6773
Experience: 27 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.

Hello again,

 

It would appear that the TOD account forms part of the estate’s net moveable estate and as such is to be included within any calculation of legal rights claims against the estate.
Section 36(2) of the 1964 Act defines “estate” as referring to the whole estate “belonging to the deceased at the time of his death or over which the deceased had a power of appointment…”. This section of the 1964 Act makes explicit provision for special destinations and powers of appointment in respect of heritable property, but not moveable property.
On the basis of the ToD Agreement, it would appear that the account belonged to the deceased at the time of his death and that he retained a power of appointment over the account. As such, it would be part of the deceased’s estate for the purposes of the 1964 Act.
note: Section 10(2) and 36(1) of the Succession (Scotland) Act 1964 (the “1964 Act”) have also been referred to support the view that the TOD is not beyond the legal rights claims
Would you agree with this?
Also, Under Scots law the only way to defeating legal rights claims in relation to moveable assets after death is by a change in the ownership and/or the control of the asset in such a way that the asset is no longer owned or controlled by the deceased immediately prior to his/her death and/or that he/she has lost the beneficial interest in the asset prior to his/her death. The argument is that he had not lost control and owned the account immediately prior to his death.
Do you agree with this?
Many thanks
Expert:  JGM replied 1 year ago.
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Expert:  wendy-Mod replied 1 year ago.

Hi, I am a moderator for this topic. It seems the Professional has left this conversation. This happens occasionally, and it's usually because the professional thinks that someone else might be a better match for your question. I've been working hard to find a new Professional to assist you right away, but sometimes finding the right Professional can take a little longer than expected.


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Thank you!

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Customer: replied 1 year ago.
Yes I am happy to wait, and thank you to the previous expert for his answers.
Customer: replied 1 year ago.
Any update on this question?
Expert:  wendy-Mod replied 1 year ago.

Thank you for your patience. We will continue the search for a Professional for you.

Regards,

Wendy
Expert:  cityguru replied 1 year ago.
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