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Relationships

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Original poster

Protecting assets for kids

23 replies

Americantan · 01/04/2018 11:32

Hi all, this is something I know I need legal advice on but just want to understand it the position broadly. I have a son with ex husband, son may never inherit from his dad. My partner and I are thinking of living together in the next year or so but neither of us wants to marry (there’ll be no more kids). We both have a bit of equity in our homes so we’d want that split to be reflected in a legal agreement. I will create a will with my son as beneficiary. I presume that my son can only ever realise the inheritance in terms of the joint house as an asset on the death of my partner? Can I ensure that him inheriting my share of the house is cast iron even if I pass first? This may sound very unromantic - my partner and I have a great relationship but I was financially foolish once and I’m not letting it happen again! Thanks

OP posts:

Original poster

Americantan · 01/04/2018 11:34

To add, my partner has no children, in case that’s relevant

OP posts:

Mum4Fergus · 01/04/2018 11:44

I'm in same position. Everything goes to my son including house however built in a 'life rent' clause that will enable my soon to be DH to live in the house for a period of time after my death.

MrsBertBibby · 01/04/2018 11:54

You need to buy as tenants in common, with a deed of trust setting out your respective shares in the event of separation or death.

Your son's share can go to him immediately on your death, or you can allow your partner to stay for life, or a set period after death.

I would strongly suggest you look at life assurance to ensure there's enough money if you died to enable your son to be provided for, and the mortgage to be cleared so your partner will be OK.

My partner and I have 3 lots of insurance. One will give a lump sum to my son if I go. That way my partner can stay in the house for life. One will provide for his ex and kids if he goes. One will clear our mortgage if either of us goes.

bassackwards · 01/04/2018 11:58

So you and your partner will buy a new house together and you want to ensure that, if you die before your partner, your share of that property passes to your son rather than to your partner? If that's the issue, I think you need to look at you and your partner owning the property as 'tenants in common' (as opposed to 'joint tenants') and making sure your will is clear about your son being the beneficiary of your share of the property. Your lawyer will be able to advise!

Original poster

Americantan · 01/04/2018 12:53

Thank you all, I had an inkling the things you’ve described were possible so that’s good news. I have a generous death in service benefit through my employers but will get a sep life policy now for the time I no longer work there. Cheers all, have a lovely day

OP posts:

TheVeryHungryDieter · 01/04/2018 13:16

One of the things I'd have a good think about if I were you for is a clause saying that your partner can keep the property but can exchange it to buy another as main residence (for example, if he needs to move for work).

However be wary of that, as it can be another way of dissolving the funds, where the property left to your child on partner's death (assuming, for example, he has downsized to a smaller retirement property from the family home) is a smaller share than you had originally left. If your partner doesn't have children, s/he may be more susceptible to pressure from a new partner to realise some of the equity to live on.

kikashi · 01/04/2018 13:57

If you buy a house as joint tenants then you own the house jointly and on death the entire property passes to the remaining joint tenant - no obligation for your DP to pass it on to your son.

As others have said tenants in common is the way to go and make a will leaving your share to your DS. You can give your DP the right to remain in the house but you don't have to. Some people put in a proviso's about maintenance of the house and some even a provision for paying of rent on the unowned half so that their beneficiary does not have to wait for death to inherit. Make sure all your policies etc. name your son explicitly as your sole beneficiary. Also think about what Hungry said about your DP perhaps moving in a new partner if he has a right to remain and explore the consequences of that.

kikashi · 01/04/2018 13:58

not inherit I meant receive some financial benefit from the house.

Original poster

Americantan · 02/04/2018 08:27

veryhungry this is exactly what I’m worried about with my former marital home. I walked away with zero on the agreement that my “half” would be put in trust for our son so it was protected in the event of a change in my ex’s circumstances. Which has now happened as he’s to be a dad again at 53 with a much younger partner! They are not married and he says he’s never marrying again but i can see them marrying. There is still an agreement to set up the trust but I realise it could be worth very little if the situation you describe occurs. The only move my ex would make is back to his country of origin and that is extremely unlikely but of course it could happen. I would want my son to realise the asset on his dad’s death and I think am going to struggle to get agreement to that now there is another child in the picture. This is why I want to make sure what I have now is protected for my son. Thanks for the advice

OP posts:

CalibriCalibri · 02/04/2018 10:46

I hope you don't mind me asking a quick question on the back of your thread OP, but can a property owned as tenants in common be held in shares other than 50:50 if you are married?

Original poster

Americantan · 02/04/2018 11:06

calibri I believe it can - my friend is married, jointly own the house but she provided the majority of the deposit and has legally protected that. I’m sure other posters will confirm the exact position.

OP posts:

CalibriCalibri · 02/04/2018 11:11

Thanks Americantan I was wondering as I understand that generally when married assets are deemed to be shared 50:50 and wasn't sure if that could be overridden.

Original poster

Americantan · 02/04/2018 13:32

Calibri when I got divorced I was told conflicting things by different lawyers - one, that I could be entitled to 80% of house and one that I might not get 50% (based on his prior sole ownership). I never explored either as I took a different route. So it’s definitely not always a straight 50:50.

OP posts:

CalibriCalibri · 02/04/2018 13:50

It's not about divorce in my case.
I have a house with in excess of 50% equity which I want to be able to pass to my children. My DP also has assets he wants to pass to his and we are both fine with that.
If he moves in with me and starts paying towards the mortgage we want to own my house in unequal shares to reflect the equity I've already accumulated.
However, if we were to marry we're wondering if we could do that or whether it would default to 50:50 despite our intentions.

CalibriCalibri · 02/04/2018 13:51

It sounds like we can do that though if your friend has and is married.

Original poster

Americantan · 02/04/2018 14:08

I agree Calibri. I think the 50:50 is a just a starting presumption in financial settlements.

OP posts:

CalibriCalibri · 02/04/2018 14:11

Hopefully, it would be a shame if it didn't make sense to get married for financial reasons.

Original poster

Americantan · 02/04/2018 14:22

Calibri I’ve just googled it and found a law firm local to me whose website confirms married couples can be tenants in common with a specified asset split. Some pp’s have made good points about death and remarriage but it seems like the appropriate clauses can be built into the deed.

OP posts:

CalibriCalibri · 02/04/2018 14:24

That's great, thanks for looking it up

MrsBertBibby · 02/04/2018 15:06

The unequal split could however be overridden by a divorce court, or, after death, by an Inheritance Act claim by the surviving spouse.

needmorespace · 02/04/2018 16:16

but they're not planning to marry

MrsBertBibby · 02/04/2018 16:23

can a property owned as tenants in common be held in shares other than 50:50 if you are married?

scrabbler3 · 02/04/2018 16:47

Theoretically, what would happen in this situation if the OP died intestate? How would her son get his hands on his share of the house?

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