Succession planning is important for everyone, regardless of the size of their estate. However, when your estate includes a croft, careful planning becomes critical. This blog focuses on tenanted crofts and grazing shares, but succession planning is equally important if you already own your croft outright.

What Is Succession Planning?

Succession planning involves deciding what happens to your croft after your death and making sure the correct legal steps are taken to protect it. Without proper planning, your croft could be placed at risk, transferred to someone you did not intend, or even lost altogether.

There are two main scenarios to consider: testate succession (where you have a valid Will) and intestate succession (where you do not).

Testate Succession: When You Have a Will

Testate succession describes the situation where you have a valid Will in place which specifies who is to inherit your croft and grazing shares. 

If your chosen beneficiary is willing to accept the croft, your Executor must transfer it to them within 12 months of the date of your death. This process includes:

• Sending notice to the landlord
• Notifying the Crofting Commission
• Updating the Crofting Register, if the croft is already registered
• Submitting a first registration application, if it is not already registered

Why the 12-Month Deadline Matters

If the one-year deadline is missed, the condition in your Will regarding the succession of your croft is null and void. In these circumstances, you lose control of who will inherit your croft, and the Succession (Scotland) Act 1964 will determine your beneficiary.

This may result in:

• The croft passing to someone you would not have chosen
• Multiple beneficiaries being entitled to a share
• The croft ultimately being sold.

All of this can often be avoided with timely action and proper planning.

Intestate Succession: When There Is No Will

Intestate succession describes the situation where you do not have a valid Will in place which deals with the inheritance of your croft. The timescale for your Executor to transfer your croft in such circumstances is extended to 24 months.

The 24-month period runs from:

• The date of death, or
• The date the Crofting Commission is notified of the death, provided this happens within two months

If your Executor fails to transfer your croft within the 12 month period mentioned above, they will have an additional 24 months to do so starting from the date of the expiry of the original 12 month period.

Additional Legal Steps and Costs

Intestate succession usually involves extra legal steps, including:

• Applying to the Court to appoint an Executor
• Applying to the Court to obtain Confirmation of your estate

These additional procedures increase costs for your estate, costs that can often be avoided by having a properly drafted Will in place.

Recent Case Law: What You Should Know

The Court of Session recently considered the 24 month timescale in the case of Pattinson v Matheson. They concluded that during this 24 month period, the croft is protected from the landlord and upon the expiry of the 24 month period, the landlord has the option to terminate the tenancy. If the landlord does not take action to do so, the croft can still be transferred to your beneficiary after the expiry of the 24 month period. Although this may prove helpful in some situations, it is recommended that your Executor adheres to the 24 month deadline to avoid the possibility of the croft being lost.

How We Can Help

At The McKinstry Company, we provide expert legal advice on croft succession planning and can also support Executors in administering estates efficiently and correctly.

We prioritise our clients’ personal, family, and business affairs, building long-term relationships based on trust and understanding. That commitment is why we are known as a Law Firm for Life.

Telephone: 01292 281711

Email: enquiries@mckinstry.co.uk

If you would like help planning for the future of your croft, our team is here to guide you every step of the way.