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AIBU?

AIBU in specifying in my will that 'new' DP allows DS to live with him or hand over my share of property?

32 replies

freshstart24 · 29/05/2015 12:29

I am buying a house with my partner of 5 years. We will be tenants in common. owning a 50% share in the property. We have each put down the same amount of deposit (£50k).

I have a DS aged 8. DS sees his Dad every other weekend. His dad is financially unreliable, he does not earn a 'proper' wage (he has a hobby which he sees as a job). I supported him for years, saw the light and ended things. He cannot afford to rent anywhere to live, he is currently lodging with a friend but friend has asked him to leave soon. I am not trying to slag off my ex, he is a good dad in many ways but the thought of me dying and him becoming financially responsible for DS is terrifying.

Anyway, I am planning to leave my share of the house to DS. However, there will be a clause to say that DP can live in the house for as long as he likes- when he sells it though, my share will go to DS (managed by trustees until he is 24 as EXP will decide to but a porche etc with it if he gets to influence DS).

DP is leaving his share of the house to me.

So my question is- is it reasonable for me to put a clause in my will that DP can only stay in the house as long as he wants (therefore delaying DS getting his share), provided that DS can live there too if he wants/needs to. I realise DS may want to live with his Dad and that is fine but I would hate the thought of him not being welcome to stay there is he needed to. The problem then becomes that if DS was still young DP could not be expected to become his 'parent' and look after him full time.....

The second issue is that this could great a situation where DS carries on living 'at home' as an adult, rent free because my will had said DP needs to give him my share of the house unless he can live there.

Any advice would be great!

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HellonHeels · 29/05/2015 12:34

Have you had legal advice about this? I think that would be the best way to go about getting sound advice.

TBH I think selling the property if either of you died would be a better idea as that would give your DS his inheritance and also enable your DP to move on and set up on his own.

What will happen to your DP's 50% share if he dies? You both need advice on wills etc.

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morage · 29/05/2015 12:35

That is a difficult decision. I agree with your plan to say that your DP can live in the house until he moves out, and then your share goes to DP.
I have seen people making less effort to build their own life and financial situation, if they get too much help from family. It can make some lazy.
Why not say your DS can live rent free in the house until he is 25 years old. But this can only be extended by the Trustees. That gives him enough time to sort himself out, but also gives flexibility if there are good reasons that he does need to live there rent free.

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HellonHeels · 29/05/2015 12:35

oh sorry, just seen DP will leave his share to you.

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WinterOfOurDiscountTents15 · 29/05/2015 12:36

It's not so much about being reasonable but about being legal. First of all if your DS is a minor at the time of your death, your will won't make any difference to who he lives with, that will be decided by the relevant people in his best interests.
If your DS was an adult at the time of your death, it would be a matter of whether he would legally be able to force the sale of your partners home, or if he could legally live their against the wishes of the other owner (should it come to that).

These are not questions of reasonableness, they are questions of law, and you need a solicitor rather than opinions on aibu.

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freshstart24 · 29/05/2015 12:44

Thank you for your thoughts. I do have a solicitor and she has confirmed that if I want to I can insert this clause. It would need to be worded in such a way that means that if DS was a minor it only applies if it is decided that it is in his best interests to stay in the home.

So, in a nutshell if ha wants to stay, and it is decided that he should be allowed to- then DP can only keep his share of the house if he allows DS to stay.

I would hope that DS' dad would step up and care for him- but this may not be possible sadly.

I am just not sure what is reasonable of me to expect- I cannot see the situation dispassionately, hence my original post.....

I do not want to force DP to sell if I died. We are setting up home together, he works full time, earns a good salary and will be paying more than me as I work part time. It seems only fair that he keeps the home as his for as long as he needs it- not having a sale forced on him......

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WinterOfOurDiscountTents15 · 29/05/2015 12:47

To be honest, I wouldn't sign such an agreement if I were your DP. What are his thoughts on your plans?

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freshstart24 · 29/05/2015 13:10

Winter I have discussed everything with DP other than the bit about DS living in the house. The only reason I've not yet discussed it with him is because it only just occurred to me this morning, checked it with solicitor and she responded straight away.

I'm not sure how DP would feel about it. I would understand if he felt it was too much. He has always said he would 'take on' DS if required, but it would be a huge ask.

On the flip side, should he get to stay there if he refuses to allow DS to live there?

So tricky to decide- I can see both sides and can't be objective.

DP wouldn't sign anything- it is my will, and my share of the house to do with as I wish. I would need to discuss with him and reach an agreement though.

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WinterOfOurDiscountTents15 · 29/05/2015 13:18

I mean I wouldn't sign to buy the house with you with such a clause attached to the house.
The way I would see it is this: we're buying a house together, intending to live together. She trusts me to live with and be involved with her child, to make a life together for us all. However, in the event of her death, I am forced to either live with her son or sell my home.
There are so many scenarios to consider: what if we fall out before or after the event? Just a random scenario (not impugning you or your child at all!): what if he's say a drug addict or has a drink problem, your DP has to let him live there or sell? Or gentler, he has a girlfriend/boyfriend/etc, does DP have to have them both live there or sell? Children too? What if your DP wants to live with someone/marry again?

It just seems very rigid as a plan, and difficult for those you leave behind.

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iwishiwasasarah · 29/05/2015 13:24

You can word it that DH has a life interest in the house and it cannot be sold without his agreement, which may help and may also stop DS's dad getting his hands on the share.

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YsabellStoHelit · 29/05/2015 13:27

Do you have anything in your will about legal custody of your DC if you weren't here?

In our wills our estate basically goes to whoever would be looking after our DCs or our DCs (if over 21) I would expect the guardians to then use what we have to help them have a more comfortable life with the kids. This has been discussed with the guardians and they have told us they would happily do this and the combined household finances (ours and theirs) would be willed to our kids as well as any they may have in future. So essentially our money would be used to bring up the DCs then would go to them later on.

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YsabellStoHelit · 29/05/2015 13:28

The guardians named I trust with my kids, I certainly trust them with my cash.

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freshstart24 · 29/05/2015 13:30

Winter, I see what you mean, thank you for clarifying things.

If I leave this clause out I am concerned that if I die whilst DS is young he could be left with nothing and his Dad would be unable to support him financially (he really is spectacularly rubbish with money).

Meanwhile DP lives in the house and sits on money that DS could desperately need. But we wouldn't be in this house if it wasn't for my lovely, kind, thoughtful DP and I need to look after him too.

Argh!!!

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WinterOfOurDiscountTents15 · 29/05/2015 13:31

The problem there that the OP's ex will automatically be the guardian of and get legal custody of their son, unless he is declared unfit/challenged by another party with standing etc. She specifically doesn't want him to be able to get the cash/half the house.

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WinterOfOurDiscountTents15 · 29/05/2015 13:33

x-posts. I can see its a very difficult problem, and by saying it wouldn't work for me I'm not in any way criticising your attempts to safeguard an inheritance for your child. Just offering another perspective.

Have you asked your solr if there is any standard/usual approach to this circumstance?

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freshstart24 · 29/05/2015 13:35

Ysabell, assuming that I am dead and EXP is alive I cannot make a will which removes his right to take care of his own child. Custody cannot be dictated by my will. If he was left my money with the intention of using to look after DS he would very likely gamble it, buy a hideously expensive car, continue not working and use it to fund himself.

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PurpleCrazyHorse · 29/05/2015 13:36

I agree with the poster who set an age limit that could only be extended by the Trustees. That gives your DS chance to live in the house until he's an adult but also gives an end time for everyone too. However what if DP wants to live there for the next 50 years, moves in a new partner etc, do you want your DS to wait for his share of your will until then? Just a question really. My parents had a clause which stated they can't move a new partner in permanently.

What arrangements do you have for your DS if he's not an adult when you die? I'm just thinking that your DP could sell up, give DS his share and move on - sorry super harsh but trying to think what might happen if you died young and DP met someone else.

The other thing to think of is can DP downsize and pocket the equity. My parents tenants-in-common will allowed this as step father would have needed to pay for carers, so he would have had to sell the family home. However he died first, so mum downsized and lives off the equity. Step father's daughter wasn't at all happy as she now only gets 50% of mum's new flat, not 50% of the value of the family home. Totally above board and both mum & step dad agreed to the details of the will but sometimes greed can get in the way for those inheriting.

Some things to think about, that's all.

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freshstart24 · 29/05/2015 13:37

Winter, thank you I appreciate your thoughts. No, I haven't asked my solicitor what is 'usual'. That is a good idea. Would love to know what other people have done.....

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LurcioAgain · 29/05/2015 13:38

I think the answer to your problems is to separate out the two issues - the inheritance, and what your DS would have for living expenses while young.

Take out life insurance for yourself to the value required for your son and take legal advice on how to get this held in trust and doled out in small portions so it genuinely is spent on your son and his education, not on a new porsche for your ex.

And then leave the current arrangement for your house untouched.

(This is pretty much what I'm doing as a single parent - house would get held in trust and rented out by son's guardians until he was 21, life insurance would cover his living expenses and education).

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SodiumReindeer · 29/05/2015 13:39

If you appoint somebody else as an executor of your will and as a guardian of your DS then they will have financial control of the assets and be able to stop your ex getting his hands on them, I've done that for exactly those reasons. See a solicitor and get them to do it for you as it needs to be watertight, I don't claim to understand how it's done but it can be done.

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Alibabsandthe40Musketeers · 29/05/2015 13:40

Well I think you need to make provision for your DS in your will. I think he should inherit your half of the house, and if your DP wants to still live there then he can buy him out, or the house is sold.

Are you really leaving your money to your partner instead of your child? That seems all the wrong way around to me.

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Alibabsandthe40Musketeers · 29/05/2015 13:42

Yes good point, you absolutely need life insurance that goes to your DS. And you need to appoint a Guardian and trustee of that.

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WinterOfOurDiscountTents15 · 29/05/2015 13:43

That really is the difficulty, isnt it? I suppose thinking about life insurance etc wouldn't help much either if the problem is not trusting your ex to use any money to benefit your son properly.

With regards to the house, I think in a way you have to disregard this clause if you're thinking about your son as a minor. Your DP can't have him live with him in the home as that wouldn't be his call, and you don't want him to have to sell the house which anyway would either have to go into a trust for your adult son so as to keep it away from your ex. And that doesn't solve the problem of there being money to raise your son because the issue isn't so much securing the money as how it would be used by his father?

I think you need to establish if there is any legal way of essentially forcing your ex to use any money (from whatever source) for the needs of your son and not on a porsche! I have no idea if thats possible though. It seems like the first thing to establish though, going on your priorities?

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cjt110 · 29/05/2015 13:50

Its quite normal for TIC to leave their property (or share of) to their children from previous relationships. Most solicitors will advise to be TIC rather than joint tenants if there are historical children. (I have worked in conveyancing).

As long as you are both happy with the arrangement, go for it.

I have a will (drafted before our marriage) which covers allll eventualities (if we werent married what would happen, if we were and no children, if were and children, if he isnt alive etc etc)

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Purplepixiedust · 29/05/2015 14:08

You may be able to find a way around this by taking out life insurance.

When my mum put some money into a house (in my name) where we lived together, I made a will leaving mum the sum she put in if I died. I then had life insurance to pay off the mortgage to provide security for my husband and son (ie no mortgage) and also took out life insurance to cover mums share so my husband would not need to sell the house.

You run the risk with what you suggest of creating a situation where people are living some years down the line with people they don't want to or in a house they don't want to. What if your sons Dad steps up? What if your husband wants to move house? Does he loose his life interest at that point. It may affect his ability to move on. He may find it intolerable to live in the house you shared if you are gone. If he is leaving his share to you it seems unreasonable for you not to do the same but of course you do need to provide for your son and cannot rely on him to do it. I understand your concerns.

I would consider taking out life insurance to leave something for your son. I would hope your DP would continue to offer your son a home but if not or if your son goes to live with his dad, both would be provided for.

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TreadSoftlyOnMyDreams · 29/05/2015 14:21

If I was your child I would always wonder if the offer to live with your DP had only come about because of the financial implications for your DP of not making the offer.

I would word it that:
The 50% share of the property automatically goes to your DS,
Unless agreed otherwise with your DS's guardians the property will be sold and DS's share realised [therefore if the money is required for his upbringing it can be accessed]
DS can invoke the sale on his 30th birthday. If DP wants to buy him out before then, the funds can be invested by the guardians but will not be accessible before that point as a lump sum.
Should the asset be liquidated, the guardians will approve all spend and set a reasonable allowance for your son's upbringing.
DP has the right to buy him out at any time, however the value should be decided as a market average for the property [assuming it's not unique] so DP can't take advantage of a sudden downturn or run down the property to get a lower valuation
DP cannot Let out the property without consent from the Guardians or buying out the share.

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