Can anyone advise on a will/inheritance question?

[PumpkinPie2016]

I'll try to keep this brief but also to include relevant details.

I am married to my husband and we have one child, aged 10. Neither of us have been married before and we have no other children, either separately or together.

Our will is currently very straightforward. If either of us dies, the other gets everything (house - it is owned outright, savings etc).

Heaven forbid we both die before ds turns 18, he inherits the lot, to be kept in trust until he is 18. We have appointed legal guardians in the will.

So far, so good. However, something is playing on my mind, probably unnecessarily but there we go.

If either me or dh dies and the surviving partner remarried, is there any way of protecting DS inheritance and interests from a new husband/wife and/or their children should they have any?

So, for instance, say DH dies and I remarry to a man who has an existing child. Is there a way that I can stop anything I have inherited from my first marriage (house, savings etc) going to my new husband/their child if I died?

I realise this is a morbid topic and neither of us are likely to be dying anytime soon (I hope!!). In addition, if it did happen, I currently feel I would not want to remarry but of course no one knows for sure.

I really don't want to sound boastful and I apologise if this comes across that way, but to be clear, the reason for my concerns is that, should the worst happen, DS would be a wealthy individual. The house, as it stands is worth around the 850k mark and we are about to extend it, so likely its value will increase. There would also be fairly substantial savings (currently around 600k). DS has separate savings of his own which currently sit at 26k but will increase.

I just want to make sure he is protected and as much as possible, gets what is rightfully his.

There is a way to do it yes it's a bit more complicated though so worth finding a good solicitor for. You basically ring fence that share.

It also depends on where you live to what is possible. In Scotland for instance it's not possible to disinherit children.

Yes, there is a straight forward way of putting this into effect, although you will need to change how your house is owned.

At the moment you own the home as "joint tenants" - like having a joint bank account - when one of you dies then it automatically goes to the surviving person.

You will need to alter this to "tenants in common" so that instead of you both equally owning the whole house, instead you each individually own a separate 50% of the house.

In your will, you pass on your share of the house to your child and it will be placed in trust. You will also give your DH a "life interest" in the property meaning that he can live there (including your 50% of the house) for the rest of his life. Sometimes a condition is added that this will only apply as long as he does not remarry or cohabit so will have to leave the property if either of those things happen.

In this way, your DS is protected if the surviving spouse remarries - or decides to do something like sell up and buy a boat and sail off into the sunset - then the surviving spouse cannot touch the money in trust (unless they are simply moving home and using the money to buy another house).

Any solicitor who is used to writing wills can do this for you and it is generally very straightforward.

If you have, or will have, very large non-property assets in your own name (eg shares or cash in the bank) that you do not wish to go to your spouse then you will need to get specific advice on that.

A previous poster mentioned Scotland. It's a bit more nuanced than they suggest. If you live in Scotland then you certainly can disinherit any child from receiving land or property.

There are certain situations when you cannot disinherit a child in Scotland from receiving a share of the "moveable estate". The moveable estate is everything except land or property, so that includes investments, bank accounts etc

"So, for instance, say DH dies and I remarry to a man who has an existing child. Is there a way that I can stop anything I have inherited from my first marriage (house, savings etc) going to my new husband/their child if I died?"

To answer this specific question - yes.

Again, if you were to purchase a house with this new guy and, let's say you put in 80% of the purchase price and he put in 20%. Then you would draw up an agreement that says that you own 80% of the property and he owns 20% as tenants in common. You then make a new will (your old will is invalid once you remarry) leaving your 80% of the house in trust to your DS with a life interest for your new husband.

If you have large savings then you should get specific advice.

The one situation where a new husband may have a claim against your estate is if you had been supporting him out of your own income for at least two years. Eg he was a stay at home parent not earning and you had an income that supported both of you.

A lot will depend on whether the surviving spouse chooses to leave their estate to their new partner or intends to leave it to your dc.

You can ring fence 50% as tennants in common but you can't control what the surviving spouse does with their 50%

The surviving spouse may go on to have more dc and those dc would be just as 'entitled' to the surviving spouses share

Yes if you're the surviving partner, you make your own will that leaves everything to your child, if that's what you want. What's harder is avoiding it going to DH's new wife's children if he survives. You'd need to trust that he makes a will protecting you child's interests, or leave your share directly to DS (which you can do whilst giving DH a life interest).

Also though, if you've been married a second time for 20/30/40 years by the time you die, you might not see it as DH/DS's money by then..

Yes, we've done similar, it was called a trust will.

Hopefully you'll both have a long and happy marriage. What you ask for is doable, but also think about (and preferably discuss):

1. What if the surviving spouse wants to downsize (so has a capital release). Does DH get to spend as you wish, or does it have to go to DS?

2. What if DS or DH suddenly need care/need to move to a residential home? Can the property be sold?

3. Would it be sensible for trusted friends/family/professionals to oversee the financial affairs of your DS if you both die/lack capacity?

If you give your DH a life interest then how does it work if they decide to sell? Do they lose the half that was the wife’s and struggle to buy somewhere else potentially with a new partner? Or if they downsize does the equity get given to the children?

obviously one for the solicitor but just wondering if anyone knew?

@Icecoldtulip you can leave a detailed life interest that allows for downsizing etc.

"What if the surviving spouse wants to downsize (so has a capital release). Does DH get to spend as you wish, or does it have to go to DS?"

Most wills are written so that a home can be sold and money transferred to the new property which is then held on trust under the same conditions.

Although it is usually at the discretion of the trustees (usually the children). So, if DH does downsize then it depends on exactly how the trust is written. In this situation it can be entirely down to the trustees and the DH to determine between themselves who gets what.

"What if DS or DH suddenly need care/need to move to a residential home? Can the property be sold?"

If DS needed extra money urgently then the home could not be sold (unless the surviving spouse agreed to it).

If the surviving spouse were to move into a care home then the house would be sold and DS would then get his half of the house which would be excluded from the surviving spouse and would not be counted when it came to considering care home fees.

"Would it be sensible for trusted friends/family/professionals to oversee the financial affairs of your DS if you both die/lack capacity?"

The OP has already answered this question:-

"We have appointed legal guardians in the will."

Thank you everyone. A lot of very good advice here! Lots to think about and maybe discuss with the solicitor.

If the house was left as tenants in common, eg 50/50, how would this affect if one of you went into a care home?

There is a massive difference between someone dying in their later 30s leaving one dc after 10 years of marriage and someone dying at 65 after 40 years of marriage.

A second marriage might result in more dc and last 50 years.

The estate would be largely accrued during the second marriage and the second set of dc are no less 'entitled' to any estate