Making a will when marriage may be failing

[shuffling]

DH and I looking unlikely to stay together. My solicitor has advised severing the tenancy on our house to protect my position (DH has run up a lot of debt) whether we stay together or not, and obviously a will comes after that.

I am a bit baffled as to what I can actually do with the will though. My immediate thought is that I want my share of the house and our life insurance (is that split if it was taken out for both of us? It pays out once one of us dies) to go to the children so that DH can't blow it and that if he remarried and had more children 'my' share of our home goes to my children.

I guess he would then choose a guardian for if he died and I wouldn't have any control over that? What are the options in this situation? I just remember watching that will programme not long ago and realising that there are lots of fancy things you can do with a will!

I'm saving up to make the will at the moment but would like to have thought about options before I meet with the solicitor again if that's possible so that I don't look like a complete plank.

I hope this makes sense. I'm struggling a bit at the moment- every aspect of my life seems to be up in the air and this is something I can tie down so I've kind of fixed on it.

You won't look like a plank. S/he's likely to have been in this position before, you haven't!

You need to think about what you want - ie, your money protected so your DH can't blow it. Work out who you would like your executors to be and ask them first (it's quite a responsibility so you can't assume) and of course say who you'd like to have your DC if you die - you're probably right he could over-rule you if he outlived you, but better to give your view...

Thank you! Good point, must actually talk to people I have in mind... Plank alert....!

What is likely to happen with the house? If it's sold and you receive a share and reinvest that in another home in your sole name, then that would automatically count as part of your estate, and your executors would have discretion either to sell it or keep it, depending on what is best for your children in the unlikely event that you die before the youngest is 18. If it was kept, then it would be registered in the names of the trustees, on trust for your children, and at a predetermined time, perhaps the youngest's 21st birthday, then it would be sold and the proceeds divided between them.

Alternatively, the trustees may agree that the house should be sold straightaway and the money put into the trust.

If the house isn't sold but transferred over to you, the same applies, but if it's kept in joint names (unlikely), then it's particularly important that you do sever the joint tenancy to avoid your husband inheriting it as a joint tenant.

So far as guardianship is concerned, usually if the other parent survives, then they would expect to have the children living with them, certainly if they have parental responsibility and regular contact with the children. Sometimes, however, the other parent may have walked out when the children were tiny and would not be the obvious choice for them to live with. Either way, you can appoint a Guardian, but it's important that you understand that it's an expression of your wishes and not written in stone. If there was a dispute about who the children should live with, the court always has jurisdiction to make a ruling.

What you decide to put in the will depends on how imminently divorce proceedings are likely to be issued; if the likelihood is that you'll be divorced in 6 months, the wording will be different from if neither of you are in any hurry.

By the way, the life insurance normally falls outside your estate as the insurance company will normally act as trustees, but you can easily nominate your children instead of your husband.

I'm a will writer and happy to give any further advice if you want to PM me.