By Nadine Walton, Brodies LLP
A personal connection, and revelation.
I live and work in the North East of England. My professional life is firmly rooted here, and I’m a proud geordie. But my family story, like that of many people in the region, doesn’t stop at the border.
My great-grandfather came from Aberdeenshire, and today I regularly travel north for work, often finding myself a stone’s throw from the area he once called home. I hear my maiden surname often, sounding somehow more familiar in the Scottish lilt. Like many people in Northumberland, Durham and Tyneside, Scotland isn’t an abstract concept for me, it’s part of a lived experience. That’s also what originally attracted me to working for a law firm headquartered there.
There are so many similarities of which you become aware on heading north frequently. The nature of the people, the manner in which they greet you, and their use of familiar words that are prone to confuse southerners- to name but a few.
Before moving to Brodies in late 2022, I suppose I therefore assumed the legal differences that would have a bearing on my job as a trust and estate solicitor would be relatively inconsequential.
Not so, I found. The challenge of acting for clients with connections to both legal jurisdictions, and analysing the interplay between them, hit me with full force. It became part of my bread and butter, and has had me hooked ever since. Below, I shed some light on the most common estate-planning related misconceptions, and frequently raised questions I hear from north-easterners connected to Scotland.
Surely where I live now is what counts?
Not always.
Where your estate is concerned, Scottish succession law may still be relevant where you have;
a Scottish ‘domicile’ (that’s where you ‘hail from’ and consider home’);
property in Scotland; or
Scottish trust arrangements.
‘Domicile’ dictates the law under which the administration of your estate is governed, the entitlement to your estate, and who can administer it.
The domicile factor therefore generally has the furthest reaching consequences in cross border estate planning, even between England and Scotland. Many people find it baffling that this concept does not just translate to residence. Curiously, an individual can still be Scottish domiciled many years after relocating south,in circumstances where they are planning a move even further afield to sunnier climes, rather than a return north.
What’s the biggest legal difference between English and Scottish legal rules in the area of wills and estate planning?
Scotland’s “legal rights” regime.
Where an individual dies domiciled in England and Wales, their will generally does what it says, subject to potential claims for reasonable financial provision. Where an individual dies domiciled in Scotland, the law goes further. Spouses, civil partners and children have automatic rights to a share of the deceased’s moveable estate, even if the will says otherwise. That can come as a shock – especially for entrepreneurial families where a key stakeholder may have overlooked this point and their shares/partnership interest is suddenly subject to legal rights.
Do powers of attorney cross the border?
Sometimes – but not seamlessly.
English Lasting Powers of Attorney (‘LPAs’) and Scottish Powers of Attorney are different creatures. Problems commonly arise where a power of attorney prepared in the opposing jurisdiction is relied upon to deal with property or business interests in the other. For anyone with assets on both sides of the border, dual documentation is often the advised solution.
Are trusts any different?
Very much so. The rules around trustee powers, how they are appointed, the duration for which trusts endure, and trustee decision-making are all very different in Scottish trusts.
Particular complexities can arise where an English-law trust holds Scottish land, or viceversa. You can therefore have a clash of the law governing the trust, and the law governing the land, which must be considered very carefully.
The North East reality
The North East has always been a dynamic region. People, industry, culture and ideas have moved across the Anglo-Scottish border in both directions. For many of us here, if we’re not personally connected to Scotland through relatives, property, or work, there tends only to be ‘six degrees of separation’.
For North East folk with Scottish ties, the message is simple but vital. Estate-planning advice should be taken from professionals in each jurisdiction, or from one adviser with knowledge of both regimes.
Because when it comes to your legacy, borders matter. Even when they feel canny close.
Nadine is an expert in wills and estate planning, she is based in the North East.
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