Project Description

Case Study

Concern about children from previous marriage missing out on inheritance

The make up of the modern family can be complicated and at Roche Legal, we see clients from all walks of life and different family structures. Whether you have a large or small family, we can help advise you on the Will that is right for your situation.

We recently helped a couple who were both on their second marriages.

Action taken

Preparation of Wills including Life Interest Trusts of certain assets.

Result

Guarantee that children from previous marriage will receive the assets in Trust, without the spouse losing the enjoyment of them for their lifetime.

How this helped

As Wills are automatically revoked on marriage unless prepared specifically in anticipation of that marriage , they each needed to put a new Wills in place.

With children from both previous marriages to be considered, our clients wanted to put measures in place to ensure that their respective children were all provided for by their estates after death, but without the need for the surviving spouse to move out, or sell their marital home to do this.

The clients could have put in place simple Wills, leaving everything to each other on the first death and divided equally between their respective children on the second death. However, as the surviving spouse is entirely free to change or revoke their Will at any time, it is possible that the children of the first spouse to die could end up with nothing from their parent’s estate.

In this situation, the best option for the clients and their families was to put Wills in place that included a Life Interest Trust which is also known as an Interest in Possession Trust. This ring-fences some or all of the estate of the first person to die from being redirected to someone else, whilst still allowing the surviving spouse to continue to have the use and enjoyment of the assets for the rest of his or her life.

Under the provisions of the Life Interest Trust, on the first death, half of the main home passes to the children, with the condition that the surviving partner can live there for the rest of his or her life; It is important to ensure that the property is held in such a way as to allow you to leave your share in accordance with your Will. At Roche Legal, if necessary, we would take care of this at the Land Registry.

This ensures at least half of the property for the children in the first instance, and prevents the surviving partner from giving this half to someone else, either during their lifetime, or in their Will. Consequently, it would also prevent the whole of the value of the property from being taken into account, should the surviving partner require means tested residential care in their later years.

With this measure in place, it would mean that if the surviving partner remarries, has more children, or simply changes their Will at a later date, although their own half share of the house may be given to whoever they choose, the other half from your estate cannot be redirected, as it belongs to the trust and not to them.

This case is a good example of the need for clarity in what can be a complicated family situation and whatever your circumstance, if you want to make, update or change your Will just get in touch with Roche Legal and we will be able to discuss your situation and prepare the right Will for you.

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