When the Trusts & Succession (Scotland) Act 2024 was given Royal Assent – i.e. was formally approved, on 30 January 2024 – it was hailed as a revelation. A massive step towards modernising Scots Law in the fields of both inheritance and the administration of Trusts. It was seen as a way of bringing the law up to date and in line with current day expectations.
However, in the period since Royal Assent was granted, only 11 out of the 89 sections of legislation have been brought into force. This means that there are still 78 sections of legislation which are neither active nor enforceable.
The main changes brought about by the enforceable sections of the legislation are:
- A change to the way in which an estate will be distributed where there is no Will. Previously, if someone died without a Will, their spouse or civil partner would get the first portion of the estate, subject to fixed financial limits. Anything else would then pass to the deceased’s children. Where there were no children, the rest of the estate (after the spousal/civil partner entitlement) would pass to the deceased’s parents and siblings or wider family.
Now, where the deceased did not have children but is survived by a spouse or civil partner, the whole estate will pass to the spouse or civil partner. This came into force on 30 April 2024.
- More powers to deal with Executors or Trustees who are unfit to carry out their role. Since 26 June 2024, if someone is being prosecuted for or convicted of the murder or culpable homicide of the deceased, the courts can either remove them as the Executor (where there is a Will) or refuse their appointment as an Executor (where there is no Will).
In addition, where a professional Trustee (for example a solicitor or accountant) has been appointed but is no longer authorised by their own regulatory authority, there is now a way to have these Trustees removed. This helps to resolve a situation which was encountered by many people who had unwittingly set up so called ‘family protection trusts’ which still had ex-solicitors left in charge of the assets.
Unfortunately, this still means that some of the most sought-after reforms are yet to come into force, such as:
- Making it easier for the surviving partner of a deceased cohabitee to make a claim on their estate by extending the claim period from 6 months after death to 12 months;
- Updating automatic Trustee powers since the most recent legislation on this area in 1921, including new statutory management powers, standard of care rules and specific duties regarding disclosure of information; and
- Introducing new rules regarding the maximum duration of a Trust and abolishing the time limit for accumulating money within a Trust.
The Succession (Scotland) Act 1964 recently celebrated its 60th Anniversary and the Trust (Scotland) Act 1921 is well over 100 years old. Both pieces of legislation were ripe for modernisation and the framework for this was agreed within the 2024 Act. With no reason being provided for failing to bring the rest of the 2024 Act into force, it might be some time before we see change occur.