How often should you update your will? And what is fair re dividing the estate?

[Wigeon]

Not sure whether it's worth DH and me updating our wills. They were made 10 years ago, pre-DC, but did have clauses about if we had DC. They don't mention who would look after the DC if we die. There are also some out of date bits in them (eg our address, and talking about a beneficiary reaching her 18th birthday and she is now over 18).

There's another question about fairness. The wills currently say that if there are no children, and we both die, the estate is divided in equal thirds between DH's two siblings and my one sibling. Is that fair, or would it be fairer to be divided 50-50 between my side of the family and his - so his siblings would get 25% each and my sister would get 50%.

This is rather theoretical, because we DO have DC now, so this clause would only come into affect if we all died together, but looking at the wills again it has made me wonder...

Does your will state who should have your DC in the event of your death? Do we need to update the out of date bits? What's fair re the division between our siblings? Thoughts welcome.

I would update them. No advice about the sibling bit-that's up to you both and very improbable that they would ever inherit now you have children. I would think about mirror wills, writing in a clause that if one of you were to die the children would have some protection should the other partner remarry. A solicitor would advise how best to do this.

I would update them. I think it's normal to name someone who'd have your children if you both died. Personally I don't think I'd care enough to argue over the sibling bit as what you've got is kind of fair enough and it's incredibly unlikely you'll all die together.

Putting money in trust for children (rather than just leaving it all to each other) is fiddly and could tie the hands of your surviving spouse (eg over moving house, using assets, etc) so I wouldn't do it unless you're super rich with cash that's likely to be spare even after bringing up children.

I would update them, we have our wishes for childcare recorded in our wills in case anything happens to us. As for your siblings - it's up to you to decide what you want to give them in your wills, everyone has different ideas.

We only wrote our wills when we had DS as we were mainly concerned as to what would happen to him if we died. I would get advice and make the changes appropriately.
We need to update ours as we now have extra nieces and nephews to cover.
As to the split that's personal to you. We actually split financial assests equally between families but with specific items going to specific people I.e my inherited family jewellery goes to my sister as it has a family connection rather than a pure monetary value.

Id update them but just remember that updating Wills together does not bar the other party to update/change their Will at a separate time later. This is worth bearing in mind particularly should one partner die first and the other party remarries. Subsequent children/new partners may appear in said Will. Obviously you know your dh best.

Thanks for replies. Yellowpansies - not superrich with cash , but quite a bit of equity in our house, and some savings, so glad we have a will.

harrassed - not sure I could control what DH does after I die even if I wanted to! I would be very surprised if he didn't ensure our DC were properly provided for, whatever happened.

Don't underestimate the amount of time surviving spouse remarries, makes no provisions for children, dies and new wife takes the house and estate. I wouldn't want to run the risk of my child not inheriting.

What DrT said. Don't risk it.

It breaks my heart when I hear this happening, and it happens A LOT. From people you never would have thought it of too.

Also, marriage invalidates all previous wills. So if one partner dies and the other remarries without updating a will, the new spouse can inherit through the laws of intestacy.

So do you all mean that my current will should have some kind of clauses about how I want my children the provided for in the event of my death and DH's re-marriage?

i live in scotland so not sure if England is the same but dont think you can put in a clause in the event of a remarriage. i.e. you couldnt leave a house to dh but putting in a clause that if he remarried he would forfeit the house to dc. Its a minefield! you would maybe need to leave house shared between dh and dc.

You can leave your spouse what's called an "interest in possession" in the family home which can allow them to remain living there for life or until remarriage (whichever you chose) and then the house passes to the children. But it gets more complicated if the spouse wants to move house, downsize, remortgage to help the DC out or pay for a new roof, etc. Or if they outlive any of the DC.

Bit simpler if you've got spare cash to leave as you can just leave it direct to your children if you want them and not your spouse to get it. Though if they're young children as you might impoverish their childhood in return for cash in adulthood.

That's in England btw

OP I'm a will writer and always advise clients to review their wills every 5 years; that's not to say that they need to change anything but just check that they're still relevant.

I'd suggest that you make new wills now to appoint guardians for your children. You should also consider at what age the children should inherit; if you say nothing they'll receive it at 18 if you both died before them which, although there's a small tax advantage, is rarely a good idea. Depending on the size of your estate you may wish to leave it to them in instalments rather than one large lump.

It's always a good idea to put in a disaster clause, ie provision for what would happen if, on the second of your and your DH's deaths, there was no surviving child or grandchild. I'd suggest that you state in the new will that the estate is divided equally between the two sides of the family.

As a pp mentioned, if you're concerned about the survivor of you remarrying and disinheriting the children (usually by accident; most people don't realise that a new marriage invalidates an existing will), you could consider a life interest in possession trust. This would ringfence your respective shares in your home for the children whilst allowing the survivor of you to carry on living there until their death or remarriage.

If you need more info feel free to PM me

Thanks for replies. Mumblechum - I have seen you recommended on here many times and was telling DH that if we do decide to update the wills we could use you ! Thank you for your advice.

I guess DH might remarry and disinherit the children, but having known him 18 years, and now seeing what kind of a parent he is, I would be mightily surprised if he did (the disinheriting bit, not the re-marrying on my death bit).

What happens in the event of our death if we don't appoint guardians in our will?

Mumblechum - I think I found from past messages that you charge £190 for a straightforward pair of mirror wills - is that right?

Hi Wigeon,

The danger is that the survivor could accidentally disinherit the children, by remarrying without making a new will at that point; otherwise the new spouse receives the first £250k plus half of the balance.

If you don't appoint guardians, initially social services would try to house them within the family and that family member would need to apply to the court under the Children Act for an order. If there's a dispute about who the children should live with, the court would decide who would be best placed to meet the children's needs. That would obviously be a long drawn out and expensive process so it's a good idea to appoint a guardian.

If you can't decide who to appoint, I suggest that you name several on the basis that they'd decide who'd actually house the children depending on a range of factors not the least of which would be the children's wishes and their stage of education. Don't appoint too many though or they could all end up having to sign permission slips/medical consent forms etc!

Thanks ever so much for the advice.

Funnily enough, my dad was talking about this issue with me a few months ago - he is divorced from my mother and now remarried, his DW has four children, he has two children, and he is trying to work out how to protect our inheritance. I guess DH and I should remember to make new wills, should one of us die and the other re-marry.

That's useful about the guardians too - there are only a small number of possible candidates, and their circumstances might change over the years, so not entirely clear who would house the children. But interesting idea to appoint several, on the basis that they'd then negotiate at the time where the children lived (I think it's likely the possible candidates would be able to discuss this without too much dispute). I think I was under the impression that if you appointed a guardian, the children had to live with then.

Hmm, lots to think about and discuss with DH. Thanks again.

No problem. Your dad and his wife should definitely make life interest trusts. If their property is held as joint tenants they must also sever the joint tenancy (which is very simple - just a short form), in order that the trust can work.

I do know one man whose wife dying of cancer left her half of the house and money to her childrein in trust with her mother and sister as trustees to pay school fees for the children as she was worried her husband might not continue private education or might meet a new woman. That is very untrusting of a spouse but perhaps wise in some cases.

It's not so much about trusting the surviving spouse but trusting the new spouse to remember their wishes if the remarried husband or wife dies before them.

It's not so much about trusting the surviving spouse but trusting the new spouse to remember their wishes if the remarried husband or wife dies before them.

Which is obviously very very dangerous and why life interest trusts are so well established as a safe and simple way of avoiding the problem

Totally agree with you mumblechum, as we experienced this and it was awful.

Also if tghe new spouse is 20 years younger (as the wives of Jeremy Corbyn and one of his cronies are) then giving the spous a life interest can often ensure your children get nothing in their life times as they are the same age as the new spouse.

That's true jenny also some new spouses have legally challenged the life interest as not being a good enough share. FILs second wife did just that and the will had to be renegotiated with the beneficiaries (or go to court where costs would have swallowed up the lot), she ended up with a large proportion of the estate he had intended for his children.

The way around that problem JanetBlyton is not to do a life interest but a right to reside for a fixed number of years, or to link it to the youngest child becoming (usually) 21.
There's always a solution to these situs