The Trusts and Succession (Scotland) Act 2024 is the biggest change to Scottish trust law in decades. Most of what has been written about it is aimed at solicitors. This is what it means in ordinary terms, and what has and hasn't come into force.
What the Act is
It is an Act of the Scottish Parliament that received Royal Assent on 30 January 2024. It does two jobs. It modernises the law on trusts, which in Scotland had grown out of a patchwork of older statutes and case law. And it changes parts of the law of succession, meaning who inherits when someone dies.
What is in force
The Act doesn't arrive all at once. Some sections took effect automatically, and the rest need regulations from the Scottish Ministers before they apply.
The succession changes came into force on 30 April 2024, three months after Royal Assent. That includes the new order of inheritance without a will. The first set of regulations followed on 26 June 2024. They brought in a small number of provisions, mainly about removing a trustee or executor who is unfit, or who has been prosecuted for killing the person whose estate they are dealing with.
The rest of the trust provisions depend on further regulations. The Act's page on legislation.gov.uk shows the current position. Check it before relying on any individual section.
What changes for trustees
A trustee holds and manages assets for the benefit of others. The Act sets out clearer duties, and clearer ways to challenge a trustee who isn't meeting them. What follows is what the Act provides. Which parts apply today depends on the commencement position above.
Trustees must act with the care and diligence of an ordinarily prudent person. Under the Act, a trust deed can't water that standard down. Professional trustees, such as solicitors and accountants, are held to the standard expected of their profession.
Trustees must also give beneficiaries information on request, unless they consider disclosure inappropriate. Either side can ask the court to decide. On investment, trustees can take non-financial factors into account, including environmental and ethical ones, where two or more investments are equally suitable.
Removing a trustee
The old grounds for removing a trustee were narrow and mostly depended on what the trust deed said. The Act sets five: unfitness, acting against the trustee's duties to beneficiaries, neglect, incapacity, and being untraceable.
It also lets a majority of the other trustees remove a co-trustee without going to court, in specific cases such as incapacity, a conviction for dishonesty or imprisonment. Beneficiaries can act together to remove a trustee, but only where all of them agree, are over 18, have capacity and are absolutely entitled to the trust property.
Commentators have warned that the co-trustee power could be misused. The courts will have to settle how the new terms are read.
Protectors
The Act creates a formal role for a protector: someone who isn't a trustee but monitors and can direct them. Protectors have to be independent of the trustees. The role suits family trusts where the person setting up the trust wants a check on those running it, without becoming a trustee themselves.
Who inherits without a will
This is the change most families will notice. Under the old order, a surviving spouse or civil partner ranked behind the deceased's children, parents and siblings. Now, where there are no children, the spouse or civil partner takes the whole estate.
It applies to deaths on or after 30 April 2024. It is not retrospective. It sits alongside prior rights and legal rights, which can still matter a great deal. Our guide to dying without a will in Scotland covers the whole order. The Act also clarifies how special destinations, the survivorship clauses in some property titles, are treated after a death.
A better rule for a spouse doesn't make a will unnecessary. Unmarried partners still have no automatic right to inherit. Children from an earlier relationship, stepchildren and anyone outside the default order are protected only by what you write down.
If you are a trustee, or have a trust
Read the trust deed for clauses on removing trustees, sharing information with beneficiaries and what investments are allowed. Once the relevant sections are in force, the Act's minimum standards apply where the deed falls short of them.
Think about who your trustees are. Choose people with the time and temperament to meet a statutory duty of care, and consider a professional trustee where the trust is large or the family complicated. If you are setting up a new trust, ask whether a protector would help, and who it would be.
A trust set up in your will only starts on your death, so it will be run under whatever the law is then. Review the wording now rather than leave your family with a deed the Act has overtaken.
How we help
Richard arranges wills and trusts through our specialist legal partners, working to Scots law as it stands. If you have a trust or a will drawn up before 2024, a review is a sensible first step. Start with our pages on Trusts and Wills.