Am i stupid wanting a trust will rather than a mirror will?

[ssd]

We earn low wages, haven't been abroad for 6 years. Im considering a more indepth will which i think costs about £1000.
And looking at it objectively, theres no need. I worry about money and the future and dont want my kids renting forever. Ds pays a fortune in rent right now. I want them buying property but i know these days its a million times harder than it was for me in the 90s.

Im married, straightforward and simple, 2 kids. I know if i died (and i have health anxiety which plays into this) my dh would find someone else and remarry without it being a big fuss. Hes a really nice person and im sure he'd meet someone similar. But probably a bit younger than him. With younger kids. Which id be all for as i want him to be happy.

But...if he dies first she gets everything. Everything I've scrimped and saved for. I do all the finances here, dh has no clue. So she gets everything and its up to her what my kids get.

Which absolutely kills me. If they dont get anything from us they are fecked. So this small house/any savings would go to another family.

Do other people worry about this when you're both healthy and this is all pie in the sky stuff??

Am i being daft? Its not that i dont trust dh, but like i said hes a nice guy who doesn't worry or think about money like i do and wouldn't realise what getting remarried means legally with regards our kids and any inheritance.

Its all driving me nuts.

Can anyone talk to me. Please.

But if you die first and your husband remarried, and then he died before his current wife, then it could all go to her, not your children, and she could leave it to whoever she wants, not necessarily your children

This!!! Also if you remarry then die before making a new will new spouse gets everything.

plus one other thought - dh and I have one dc. If I die and he gets everything (he won’t - we have trust wills) he could easily have more dc (I’m post menopause), even if he then divided all his assets equally that would leave my dc with much less than they would otherwise get!

dh went through a battle with his sm over his late fathers will And there weren’t even any step siblings - he lost a lot of what his df wanted (badly written will, very dodgy solicitors, barristers/court costs too high to fight it)…so he gets the potential remarriage issues!!

If your principal asset is your home, and you own the home as joint tenants, you can't will your "share" elsewhere - your spouse will automatically own the entire property on your death. You would have to change the property to tenants in common, which requires the other tenant's participation and consent.

No, I don't know anything about your circumstances. But I do know how often children are accidentally disinherited by parents like you. I hope you are right and it doesn't happen to your children.

My mum died in her early 50s. Dad said he wouldn’t marry again. Just over a year later he got married.
His wife has 2 DC (same age as me and my sibling) from a previous marriage.
His wife had a brief conversation with my sibling recently and she said they were keeping it simple and leaving to each other in their wills.
I have yet to be brave enough to bring it up with my Dad as I don’t want to seem grabby. My mum was with my Dad through the very lean years. She missed out on the comfy years. I know she would be very pissed off with him.
Circumstances change.

Im guessing changing it to tenants in common is something the solicitor would do for you or is it possible for me to do that?

Just to repeat what PP have said: you need to sever your joint tenancy if you are joint tenants, so that you own the house as tenants in common, which means you can leave your "share" as you wish (joint tenants cannot do this and the survivor gets the whole, regardless of what the deceased's will may say).

Then do a will leaving DH a life interest in the house (meaning he can live there till he dies), whereupon it goes to your children.

I'm a solicitor myself and I had Marlow Wills do my will recently. She is excellent and the cost was considerably less than £1000, though my estate is straightforward with only my house to leave.

Also this is incorrect. A joint tenancy can be severed either with the consent of both owners, or only on the instructions of one. I had to do this when my spouse left me and I wanted to re-do my will. Again, Marlow Wills did this for me for a very reasonable cost.

In Scotland it's not called joint tenants/tenants in common and despite owning a home in Scotland I honestly couldn't tell you if it works the same way as in England & Wales.

You're getting a lot of advice here from posters who don't understand that Scotland has its own legal system - you need to talk to an actual lawyer to be sure of getting this right. You can't disinherit your kids in Scotland, they are entitled to a share of a parent's "movable wealth" - but if most of your wealth is in your home you're going to want to look into this further as a house is not "movable".

Your thoughts are entirely sensible and you know what you want to do.

I'd suggest starting a new thread, setting out what you want and stating Scotland in both the title and the OP.

Severing joint tenancy and changing Will to leave house share to children (Scotland).

("Joint tenancy" - If joint property ownership in Scotland is different than England, as noted on this thread, then find out the actual position and use the correct terminology on your new post.
https://www.rocketlawyer.com/gb/en/family-and-personal/manage-personal-property/legal-guide/co-ownership-of-property-in-scotland#:~:text=as%20the%20owner.-,Can%20you%20have%20more%20than%20one%20owner%20of%20a%20house,property%20and%20ultimately%20selling%20it. was my first search result, but no doubt living there you'll have some idea anyway).

Then the text of the OP should detail your situation and what you want to do concisely, reiterating you are in Scotland and the different laws there.

The majority of English based posters on this site aren't necessarily going to be able to help.

Do you have CAB or similar who could assist?

and wouldn't realise what getting remarried means legally with regards our kids and any inheritance

Have you had this discussion with him?

Dh is similar...I work in financial services so management of our money has naturally fallen to me. He had no idea about the risk of remarriage either, should something happen to one of us - it's just something he'd never thought of. He was shocked and pretty horrified at the thought of a potential new spouse inheriting everything and the dc left with nothing and I was shocked at how he could be unaware of this! It came up by chance when discussing a friends new husband.

I feel a hundred percent better now that we've talked about it in depth and dh's reaction was such that I'm pretty certain he wouldn't remarry now should something happen. Not that I'm saying you should leave it to his honour but discussing it with him is a good first step and may help your anxiety in the short term whilst you get something in place.

I did this

It won't cost £1k

Contact an Mner called mumblechum who lots of us have used

You are being very sensible. Good luck x

You are entirely sensible and more people should do this.

@savethatkitty as a married couple isn't the fact you have separate finances irrelevant, legally don't you own 100% of everything jointly regardless of who's name anything is in and therefore only able to leave your half of everything to anyone other than DH? If anything else were the case wouldn't people avoid getting divorced and having to hand over at least 50% of everything, just wait until they die and then cut off the spouse?

No. This hasn't been the case in the UK since 1881-2, for reasons that will be very obvious if you look into the background of the Married Women's Property Acts.

What a court does in the event of a divorce is irrelevant. The law in all nations of the UK recognises that people are individuals even when married.

Love does funny things to people. People end up hating those they once would have died for. Nothing is predictable.

Many times a well meaning parent has died believing their second spouse would be fair and that spouse has gone on to favour their own dc or remarried themselves and the first spouses finances get lost in the new arrangements and the first dc lose out.

Don't forget we aren't always taking about old people. Someone financially well off can die early and the surviving spouses second marriage can be very very long and happy and produce more dc. After 45 or so years together the surviving spouse is likely to leave everything to their partner assuming everything will be left fairly. But it doesn't always happen.

"Under no circumstances will I leave our home to a potential new DH or stepchildren. I would never takr anything away from my DC."

🤣 oh bless you. So naive to the many many things that could happen

A friend of mine lost her Mum young and her Dad remarried someone with her own family. Friend's Mum had worked full time (unusual then) and also had inherited money from her parents. Friend's Dad lived to a ripe old age, never made a will and got huffy if asked about it. Second wife inherited a large estate from him, which all passed on to her family on her death.

All these posters knowing their DH is kind and sensible NOW have no way of knowing if they will be the same in old age. A widower can be fair game, or even maybe just not wanting to upset wife no 2.

OP you are confused by the meaning of mirror will, mirror wills can and frequently do include life interest trusts.

If a couple have children and own a house as tenants in common it is quite normal to see a life interest trust for the partner and then the children absolutely on vesting (ending) of the trust.

You have to be careful on the type of trust created, it needs to be a trust "created by a will" as defined by the HMRC, and specifically not a discretionary trust.

Some trusts have exit charges and 10 yearly charges, some block the passage of unused IHT benefits - a simple trust created by a will holding property with the beneficiaries defined in the trust has no exit charges or 10 year charges.

It is worth noting that the trust value is counted as the estate of the life beneficiary for IHT, so if Joe & Jane own a house worth £600K (£300K each), Joe gives a life interest to Jane, then to Tom their son, when Jane dies her £300K + Joes £300K are counted as hers, IHT is charged and Tom inherits as per the wills (in this example, assuming Joe & Jane are married at Joes death their is no IHT to pay as both have NRB & RNRB available and transferrable.

Not daft at all, the exact situation you describe happened to me and my sister and I believe it’s not that uncommon. DH and I used a solicitor have structured our wills so that our dd will inherit, it didn’t cost £1000 though, that sounds high to me.

But what happens if either of you needs more care in the future than anticipated? How do you know what to budget for re retirement and care as once it's in a trust it can't be touched?

OP: I think you are taking a very sensible approach. I would, given that it's what my husband and I have done!

When we were younger we took the view that if one of us died, the other would have everything and that was fine. Now we are older (60s and 70s), we have taken a different view.

My husband is 10 years older than I am and will probably die first. If he doesn't, I think it is extremely unlikely that he will remarry and disinherit our children. But clearly this sort of thing does happen. My husband might meet someone who has her own children and could decide that they need the money more than our children do.

My husband has a son from his first marriage. If he left everything to me, I could decide to leave it all to our children and nothing to his son. I like to think I wouldn't do that, but who knows what I would do if I knew that my children were struggling financially and I had the opportunity to help them?

This way, we each protect our own children. We have severed the joint tenancy and are each leaving our half of the house to our children (my half is divided into two and his half is divided into three). The surviving spouse will have the right to live in the house for their lifetime, whether or not they remarry. I am also not leaving any of my savings to my husband (though he will obviously automatically get the contents of our joint savings account). He has a good pension and his own savings and doesn't need any more.

I don't know about Scotland, but in England severing a joint tenancy is simple to do and doesn't require a lawyer. Neither does it require the agreement of both parties, so you can do it whether your husband likes it or not.

We have also recently set up our LPAs. Again, simple to do and doesn't need a lawyer. Just read the guidance very carefully and follow it to the letter.

The half in trust is ring fenced, and will eventually pass to the children or final beneficiary ("remainderman" man in law)

The half of the spouse in care will fund their care until only £23K remains, the the local authority will take over the funding, this happens when any individual gets down to the £23K regardless of what they started with.

It is quite common to find people sat next to each other in a care home, some still self funding and some where the LA has taken over.

OP I think you’re being sensible. People don’t give enough thought to this kind of thing. I do think you need proper advice based on the Scottish system, as most people here know the English system.

I know my mother and stepfather have everything tied up in to trusts, so that I inherit her share, his kids inherit his share, but the surviving spouse has use of the house until death (or if sold, they keep their share). That’s the other thing I would suggest - once they’re old enough, make sure that your kids have a (basic) understanding of what’s in your wills. The fewer surprises the better.

And thank you, you’ve given me a kick up the backside to get mine updated, we haven’t since marriage!

This is a great thread and something everyone needs to think about. I do think men are more likely to get married again!

I'm like you OP, my children come first and I want them to benefit from my hard work etc. I have simply left my 'half' to my children and will start to give them money where I can to minimise IHT. in fact now my children are both older I must change my will to make them executors.