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Wills - protecting child in remarriage

(29 Posts)
Amaaazing Wed 06-Feb-13 23:14:13

Am thinking about writing my will and was wondering what people do to deal with the following potential scenario:

If DH were to remarry after my death, how can I make sure that our only DD would inherit my estate (as opposed to DH's potential new wife?)

Am also not sure how to split my estate between DD and DH - what do people tend to do?

mumblechum1 Thu 07-Feb-13 13:54:49

The only way of being absolutely certain is by putting your estate in trust for your daughter. Often people don't put their entire estate in trust, but will do so with their share of the family home, and give their spouse a life interest. This means that the surviving spouse can continue living in the house until their death or remarriage, at which point the house is sold and the first person's share is paid to the children.

I'm a will writer and most of my clients (many of them are Mumsnetters) give everything to their spouse in the first instance but if their spouse has already died, the estate is split equally between their children. This does, of course, work on the basis that they trust the surviving spouse not to change their mind and leave everything to a third party.

If you want any more info, I have a paid for advert over on Small Business Classifieds.

cooper44 Thu 07-Feb-13 15:09:59

Hi I did exactly as mumble above suggests. I left whole estate in trust to my children but gave OH lifetime interest in the property. I not only wanted to protect everything for my kids in case of future marriages but also because OH is utterly crap with money. Make sure you have some very solid executors too.

Amaaazing Thu 07-Feb-13 16:08:43

Cooper did you tell OH about the set up and what did he say?

Mumblechum1 thanks i will be in touch in RL.

cooper44 Fri 08-Feb-13 20:01:13

No I didn't although I would if asked. I pay for everything pretty much. All equity in property was brought into marriage by me. If I left everything to him it would be smoked or frittered away by the time Dcs are 18. Sounds harsh written down but it's not when you know the whole situation. And by giving him a life interest he still has the house it just ultimately will go to DCs

fatnfrumpy Sat 09-Feb-13 15:51:03

My DH and I have also done this in our mirror wills. leaving our half of the estate to the children(over18) with the proviso that on remarriage the house has to be sold.
My DH went along with it but was/is unhappy that he thinks I wouldn't trust him to do right by our children. BUT you just never know what may happen when you are gone and new people are in the family?

mumblechum1 Sat 09-Feb-13 16:02:25

It's actually not that unusual, even in nuclear families, and quite common in step families.

When I do these trusts I always ask the client to think about whether the person remaining in the house will be able to maintain it. No good giving an elderly wife a life interest if her pension doesn't stretch to maintaining, repairing , insuring etc the house.

You also need to think about whether to put a portability clause in, so the survivor can downsize, and also what would happen to any surplus arising from the downsizing move. Should it go to just the surviving spouse, or split between the spouse and the children?

dippymother Mon 11-Feb-13 08:38:57

Similar scenario. I'm a widow and inherited house/savings from my late husband. I am now in a relationship with a wonderful man, who happens to be crap with money. We are in the process of selling my house and his house and buying one together. His house recently sold but there was very little equity or savings to transfer to the new property, so he will be getting a smallish mortgage for the shortfall. My house is owned outright and therefore I will be putting most of the proceeds into the new property. My DCs are in their 20s but still live at home. Currently my Will leaves everything to the children but I want to change it so that the children don't lose out should I die but I wouldn't want my DP to be thrown out of the house. DP's Will leaves his estate to his sister and his godchildren (3) and similarly I don't want to have to sell up to honour his wishes. We are buying the new property as Joint Tenants - my share 75%, his share 25% as we are not married, although that may change in the future. It might work to have a "life interest" written in although I can quite clearly see my DP finding someone else and letting them move in, but not marrying them (he has never been married), which could delay my children in being able to benefit from their inheritance for years. Maybe a downsizing clause could work but I'm really unsure as to how to do this so that both I and DP are happy with the arrangements. Would be grateful for any advice please. Many thanks, sorry it's so long!

mumblechum1 Mon 11-Feb-13 09:33:54

Hi Dippy, I strongly recommend that you don't buy as joint tenants (which means that if one of you dies the other automatically inherits, irrespective of what's in your wills), but buy as tenants in common instead. That way, your share passes under your will to your children.

You don't have to give your partner a life interest; you could give him a right to reside for a specified period - any period you choose.

Regarding the downsizing clause, you have to think about the relative value of a smaller house; if you own a million pound house, then die, and under the terms of the life interest trust, your partner decides to buy a bedsit for £150k, is it right that he should receive all of the surplus? That's an extreme example but one you need to think about.

dippymother Mon 11-Feb-13 11:00:45

Hi mumblechum, many thanks for your response. I did make a mistake - we are buying the new property as Tenants in Common, sorry for that. Phew, at least the children would get my 75% share.

I suppose my worry is that DP shouldn't be homeless following my death but I want to protect my DCs too, especially if DP goes on to a further relationship with possible children/stepchildren. Also, should DP die first, what would be the best Will for him to have, in order that his beneficiaries inherit, but I am not compelled to sell in order that they get their share of his 25%.

mumblechum1 Mon 11-Feb-13 11:33:22

Hi Dippy, you should probably make mirror wills so that what applies to your dp also applies to you, whether that is a life interest (the difficulty then is that the children have to wait a long time for their money) or a right to reside (shorter period for the children to wait, so the surviving partner has to find the money for the deceased's beneficiaries earlier - double edged sword!).

What you may want to do is a will which gives each of you a right to reside which is tied into another life event, eg your youngest child's 21st birthday, and then review the will at that time. You can always change your will at any time to reflect changes in the relationship or in your circumstances.

If you'd like to get in touch off-board, my website is on the paid for advert over on Classifieds/Small Business.

dippymother Mon 11-Feb-13 13:59:42

Thank you so much for you advice mumblechum - I will look at your website and hopefully go from there.

mumblechum1 Mon 11-Feb-13 21:01:45

smile

cheungowen Wed 13-Feb-13 14:26:47

@ Dippy.
So what would happen if your OH lives longer than you, his 25% share would not buy anything as nice as the home you guys share and if he has very little savings and has to fork out somehow (eg selling the house) for his care in old age.
Would he not have to eat into your intended inheritance for your children?

Xenia Wed 13-Feb-13 14:55:04

Anyway why should these adults inherit? Not their money. Never earned it. If they want a house after wife's or husband's death amazing idea- earn their own money and buy one!

cheungowen Wed 13-Feb-13 15:27:43

This is what most men would say to their soon to be ex wives in a divorce......
Go and earn your own money and get unused to this kind of life style. LOL.

Xenia Wed 13-Feb-13 15:43:32

That is exactly my view (particularly a a woman who had to pay a vast sum out to a man on divorce - why should an adult bail out another adult when they have arms and a brain and can earn their own money - particularly in these second marriage cases where both are say 40 with children from a first marriage, not likely to have any more and very much particularly as here where one has virtually nothing to bring to the marriage financially from sale of previous house and the other half is providing it all. Surely it should be the case that on first detah the spouse who has nothing and brings nothing leaves adn the children get 100% of the home.

If he wants to build up equity in a home then he or she can get a full time job from 40 - 60 and work and buy a second home so they have that when the spouse dies? Seems the fairest way to organise things.

cheungowen Wed 13-Feb-13 16:53:32

@Mumblechum
In the above response, you recommend putting the estate in a trust for the daughter.
If you need to sell the property while you are alive, would you have the power to decide that?
Or that would be the trustee’s decision?

And if you are married and the estate is in a trust for the daughter, can the OH go after your share?

cheungowen Wed 13-Feb-13 17:06:25

And if you are married and the estate is in a trust for the daughter, can the OH go after your share in a divorce?

Xenia Wed 13-Feb-13 17:37:05

I think it depends. Probably not, but you would lose control of it which is the downside perhaps. I'm not sure. MC will know more than I do but I think there was case - some fairly famous rich business person had money abroad in trust which he and his wife set up 20 years before for the chidlren and on the divorce she wanted to get her grubby little hands on it. In that case it was so long ago she didn't I think.

I know someone whose wife who had cancer (a lawyer) put her half of the house and money in trust for their 2 children - they were not even divorced so that when she died (and sadly she did die) her mother and sister controlled it and ensured all her life insurance monies etc went to school fees for the children. She did not trust her husband's views on school fees and thought the money might not go as she wanted it to unless her family were controlling it. He accepted that very nicely as he nursed her unto death. Very difficult issues sometimes

mumblechum1 Wed 13-Feb-13 21:06:46

Cheungowen, I normally include a portability control in Life Interest Trusts so that if the Life Tenant (the survivor of the couple) wishes to move, they can do so. The trustees would have to sign all of the conveyancing docs, and the new property would be bought in the names of the survivor and the trustees. I always check with the client what they'd want to happen to any surplus arising from downsizing.

mumblechum1 Wed 13-Feb-13 21:07:29

portability clause.

Sorry, 13 hours solid working and time to switch my brain off now!

digerd Wed 13-Feb-13 21:28:11

Still think it would be easier to have the French and Spanish < and others> inheritance laws, where the blood line issue are the heirs and not the spouses.
It works in those countries, so why not here?

mumblechum1 Thu 14-Feb-13 09:39:01

Because if one of the spouses dies when the children are small, the money is tied up in trust for the children and the surviving spouse would find it hard to manage, I'm guessing!

Xenia Thu 14-Feb-13 10:27:39

And it meant big estates got broken up in France where in the UK the oldest son got everything rather than compulsory division amongst loads of relatives so land ended up held in smaller and smaller parcels I suppose.

If you are supporting someone when you die and you make no provision for them they can claim under the law an act IPFDA. So if you marry an idle loser who never does a stroke whether he or she is male or female (say you are both 45 with grown up children which is the theme of the thread) they can claim under that law even if you give it all to the children and the cat's home I think. If you have children under 18 whom you support and choose to leave them nothing then again they can make a claim so it is best to take legal advice before making radical decisions.

In the lawyer case above that widower is now left with his mother in law controlling his late wife's half of the house. He could not sell up and spend that half on drink or a new lover or a wine bar in France for example and all her life insurance cash will go entirely for school fees even if the father does not agree with that.

digerd Thu 14-Feb-13 11:12:52

In France, if the deceased has no offspring, her/his blood line family inherit his estate. I read in the newspaper a few years ago, that a 60 year-old widow had a baby by IVF < presumably by his sperm to be blood-line> in order to secure his million pound estate as trustee. But it would have been a doner egg at her age. I was told by a greek lady it is the same in Greece.

dippymother Fri 15-Feb-13 12:21:35

Hi there cheungown, sorry hadn't noticed your post so apologies for the slow response. There seems to be so many snags and hitches no matter what you choose, it's no wonder people get confused.

No, I wouldn't want my DP to struggle financially. I think we would have to review our Wills at regular intervals to ensure everything is up to date and appropriate for the relationship.

At the moment, we are buying a house together, having sold both our separate houses. DP had a huge mortgage on his house and very little equity and he had no savings. Mine was mortgage free, plus I have some savings, so I am putting in 75% of the cost of buying our new home. The rest will be provided by a mortgage in his name, though if he defaults on it, I will have to take it on.

If I had died at, say Xmas, my DCs would have inherited my current property. I am hoping that we will be able to reduce the new mortgage as quickly as possible so that the property becomes mortgage free and my DP's 25% will enable him to buy something much smaller but equivalent in size to his previous home. It may be that I'll change my Will so that DP and DCs get equal shares, but they would need to sell the house to receive their inheritance. If DP dies before me, I would hope to have the means to buy out his 25%, but I'm assuming both of us will be alive for another 10 years (we are late 40s/early 50s)!

DP and I are not married and have been together around 18 months. I expect/hope we will grow old together but who knows what could be lurking round the corner - I need to protect myself, my DCs and DP from being worse off than we were before, should we split up for instance.

Unfortunately I have limited knowledge of correctly wording Wills and that is where I'm struggling.

mumblechum1 Fri 15-Feb-13 13:33:09

Dippy, as mentioned earlier, I'm a qualified will writer so if you need any help (just off the cuff advice if that's all you need) at no charge, please feel free to PM me.

dippymother Fri 15-Feb-13 17:37:39

Thanks mumblechum - didn't intend to hijack this thread though, so perhaps PM would be better. Will discuss later with DP. Many thanks.

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