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to not leave the house entirely to the surviving spouse in the will should one of us die?

(59 Posts)
TheDogAteTheHomework Tue 02-Dec-14 20:39:04

Hear me out.

DH and I are happily married with DC, both of us work and all finances are pooled.

I am DH's second wife, and he has done well through previous investments etc before we were married, so brought more to the marriage than what I did (nothing blush )

As a means of protecting the children's inheritance DH has said about putting a clause in our wills (we currently have mirror wills) about the house of if one of us dies instead of the all the assets and finances just going to the other surviving spouse, a portion of the house (50%) be put in trust for the children. Just in case one of us was to be 'hit that bus' before our time was up (so to speak), we have seen it happen in our own family where one parent died, there was young dc left, the remaining parent went on to remarry and the new spouse moved in and they divorced years later leaving the dc left with absolutely no inheritance from the second marriage.

He is looking to see if we can protect our children's inheritance that way I think it's a good idea but thinking that I wouldn't want to run the risk later (god forbid something happen to either of us!) of falling out with one of the dc down the line (hypothetically speaking - it does happen though doesn't it ?) and they would be able to force the sale of the family home to release the portion of their inheritance this is my only concern.

Does anyone do this ? I would imagine others would be doing this at some point as well ? Can anyone advise anything ? We will be going to a solicitor anyway, but actually thinking on it we did have a trusted friend (dc's guardian in fact) as an executor on the will along with one of the solicitors, but from reading on here about them charging a portion of the estate as a fee, I'm thinking we might remove this instruction when we redo the wills !

MissPenelopeLumawoo2 Tue 02-Dec-14 20:45:22

Can't you add a clause that says the children inherit the 50% from the deceased parent, but the remaining parent has a lifetime interest in the house, meaning it can't be sold until they have died. I'm not a lawyer BTW but I have heard of this.

We used a solicitor to help settle my parents affairs, they did it for a set fee, not a percentage.

NotDavidTennant Tue 02-Dec-14 20:45:55

Are you tenants in common or joint tenants?

ChristmasJumperWearer Tue 02-Dec-14 20:49:05

There's a fabulous will-writer who is a Mumsnetter and will hopefully be along to advise. Loads of MNetters have used her.

Based on our wills I think you need a trust to protect the DCs' inheritance from the scenario you describe, which is a good idea, but someone in the know will be along soon, I'm sure.

TheDogAteTheHomework Tue 02-Dec-14 20:52:41

Not David Tennant

Goodness I don't know, what is the difference ? We are both on the deeds to the house and the mortgage is in both our names.

MrsHathaway Tue 02-Dec-14 20:56:00

GPIL and PIL have done this - and so have we.

It's not so much about remarriage, but about stopping the house being sold to fund social or medical care in the survivor's old age.

GMIL lives in her own home with significant LA care (three or four times daily). Her two sons own late GFIL's half of the house.

You can add a clause preventing sale of the house until the youngest is, say, 21, and/or permitting the surviving spouse to live there for the rest of his/her life.

LadyIsabellaWrotham Tue 02-Dec-14 20:56:11

I can't see that it's necessary at this point really. These are the children of both of you, so presumably you'll be equally motivated to protect them. In the event that you are widowed and remarry then you would indeed need to make a will protecting your children's interests as against new spouse, but it seems a bit previous to do it now, given that the situation may never arise. It seems quite untrusting.

ClashCityRocker Tue 02-Dec-14 20:57:53

Jointly owning the house means that if one of you dies, the survivor inherits the house.

Tenants in common means you both own a fifty (or whateve) share of the house and can leave your half to whom you chose.

There's more to it, but that's the crux. Joint ownership tends to be the default, but it is simple enough to change to tenants in common.

ClashCityRocker Tue 02-Dec-14 20:58:58

But what if one dies and the survivor remarries? The house would become an asset of that marriage, and if they divorced, it would be at risk.

ClashCityRocker Tue 02-Dec-14 21:01:21

And yes, it's quite common.

Inlaws have this set up, more to prevent the house being sold for social care.

Mumblechum1 Mon 08-Dec-14 12:54:07

Christmasjumper, thank you!

OP, what you're describing is a Life Interest in Possession Trust (LIPT). I frequently use these for stepfamilies. In a nutshell, each party says in their will that they are giving their share of the property into a LIPT for the eventual benefit of the children. The children don't automatically have to receive this in equal shares, it depends on the circumstances.

During the trust period (the time between the first and second deaths), the surviving spouse carries on living in the property until their death or earlier remarriage, at which point the trust comes to an end and the house is sold. The first-to-die's share goes to the children, even if the surviving spouse has made a new will giving their share to the dogs home or new spouse.

During the trust period, the surviving spouse is usually responsible for paying the outgoings, insuring the property and keeping it in good order. I normally also put in a portability clause so they can downsize if needed.

OP, you were concerned about what would happen if the children and surviving spouse fall out. The way the trust is written, the children don't have the right to force an earlier sale unless they're in breach of the terms of the trust.

Fluffyears Mon 08-Dec-14 17:16:31

My parents became tenants in common when my dad became terminally ill so that his will have 50% of the property between myself and a sibling. Mil has house put into trust for dh should she ever need care. My parents and his worked hard all their lives from the age of 15, damned if they are going to lose the homes they worked hard to buy. They paid tax for years but when my dad needed help he got zilch from government and had to make all modifications himself!

auntpetunia Mon 08-Dec-14 17:26:11

We've done this in out will the 4 of us are tenants in common. So was all own a quarter. If DH dies I get his half and vice versa but then if the remaining one needs care home etc then the house belongs to the kids so can't be sold. No one can force a sale for inheritance purposes as that's in the will.

WooWooOwl Mon 08-Dec-14 17:54:17

I think it's a good idea, and we did something similar. It's quite common for the remaining partner to be given a lifetime interest in the house to avoid adult children forcing a sale.

SistersOfPercy Mon 08-Dec-14 18:05:53

My parents did this. When Dad died 6 years ago I inherited 50% of their house with the remaining 50% passing to me when Mum dies.
It was done though a local solicitor.

longjane Mon 08-Dec-14 18:55:03

Please be careful
I know in real life of one old lady who when her husband died
He left his half the house to his son.
The son made the old lady sell up.
She is now in old people's home.

ThreeFrazzledFandangos Mon 08-Dec-14 19:30:36

And I've heard it the other way around where a widower remarried within 4 months of his wife dying and asked forced his 16 and 17 year old daughters to move out as their new stepmother didn't appreciate them being there.

This was their biological dad , not step dad. Nowt as queer as folk.

FunkyPeacock Mon 08-Dec-14 20:01:15

Fair enough if the house is your main/only asset but if you have other assets then maybe consider theses being passed to the DC if one if you dies rather than a share in the house

A good friend of mine 'inherited' a share in her parents house when her DF died over 10 years ago. Her DM still lives in the house and is also pretty wealthy where as my friend is struggling financially but may not actually see her share of the house for many years. I think her DF would have been better to leave her a lump sum on his death which would have helped her hugely rather than a share in the house which may not materialise for another 20 odd years

Erzsebet Mon 08-Dec-14 20:41:53

We've done this. With a clause that says DC can't force sale while surviving parent alive although if the house is sold say because a new spouse wants to live elsewhere - the DC get their share then.
My DP is lovely and says he'd never get involved with a money grabbing type but I've seen the consequences and think everyone should protect themselves and their family this way.
A friend as a 12 yo child and her three older siblings lost their mum. Very wealthy Dad re-married within 12 months, new wife had twins six months after wedding, three months later the dad had a heart attack and died - four WEEKS after that and it felt like the day after the funeral but probably wasn't friend was sleeping on our sofa and siblings dispersed to wherever they could kip until other relatives could take them in here and there with only the clothes on their backs - nothing at all from their home or of their parents. The new wife took the lot, threw them all out and said she had to protect her fatherless twins... She remarried within three years too .. It was quite a local scandal.
I vowed there and then to never be beholden/rely on any other person/a man for the home my DC live in and to always keep an up to date will.

maddening Mon 08-Dec-14 20:44:59

With joint tenants and tenants in common - with one the deceased's half of the house goes in to their estate, with the other when one passes the other person assumes the whole house - can't remember which way round it is though

PicaK Mon 08-Dec-14 21:13:00

You know these lifetime interest things? What if the DC runs up debts or is sued etc - can the company s/he owes money to force the sale of the house?

whathaveiforgottentoday Mon 08-Dec-14 22:12:26

Sounds pretty sensible what you are proposing. I had a friend who lost his mum and his dad went onto remarry. The new wife had 2 grown up daughters and sadly new wife went onto to die after a few years. All her inheritance went to her new husband and her 2 daughters got nothing. My friend was very ashamed of his dad who refused to give the girls anything.

Hoppinggreen Mon 08-Dec-14 22:17:34

My mum has left me and my brother her house in her will but step dad can live there as long as he wants/lives.
To be honest he is older than her and has health issues so will probably die first but who knows?
My brother has told me if our mum dies first we should try and get step dad out ( my brother is a total git) but I wouldn't allow it.

TestingTestingWonTooFree Mon 08-Dec-14 22:29:06

YANBU

Try and work out what you want to happen in a variety of circumstances and then get a proper lawyer to draft a will.

MsAspreyDiamonds Tue 09-Dec-14 03:28:52

We have done exactly this so that 50% of the house etc goes straight to the dc in the event of mine & dh's death. We had a clause put in about the life time interest in property & that the age of inheritance is 21 instead of 18.

My grandad was left penniless because his stepmum got everything & it caused him great hardship. This is the reason why I did this and it is unusual but I think proportional inheritance is much fairer.

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