December 19, 2016How to protect your children’s inheritance

Family with children

Many couples choose to make ‘Mirror Wills’ which typically leave everything to the other, and then to the children. However, these often have unintended consequences.

What is a Mirror Will?

Mirror Wills are simply identical Wills that a couple make, leaving everything to each other.

For example, your Will might specify: ‘I give everything to my husband on death, but if he dies before me it goes to my children.’

Your partner’s Will would then say: ‘I give everything to my wife on death, but if she dies before me it goes to my children.’

Unfortunately these do not typically operate as you might expect.

Remarriage

If your partner should remarry after your death, the Will they made while you were alive will be automatically revoked (cancelled) and their new partner will be first in line to inherit the estate. If they then die first without having made a new Will, the rules of ‘intestacy’ apply which state that the new partner will receive the first £250,000 of the estate, with the rest being split between the new partner (50%) and the children (50%).

Consequently the children of your marriage may see very little of your estate.

Step children

The situation is further complicated if you have children from a past relationship. Whilst your partner may be inclined to write a new Will after your death leaving their assets to the children of your marriage, chances are they will be less inclined to provide for children from your previous marriage. Step children will not stand to inherit under intestacy rules unless they were legally adopted by your partner, and even if this were the case, the new partner still stands to benefit from a substantial portion of the estate.

‘Reasonable provision’

If your partner does remarry and make a Will leaving everything to the children of your marriage, effectively disinheriting their new partner, the new partner can make a claim under the Inheritance Act on the basis that the Will does not make ‘reasonable provision’ for them. The Court may decide to award the new partner a substantial portion of the estate, regardless of what the Will says.

Care fees

Another problem arises if you should die first and your partner needs care. Funding is very limited and the Local Authority will usually perform a ‘means test’, requiring your partner to pay for their care until their assets reach the lower limit of £14,250 at which point the Local Authority will take over the payments. This means that the substantial part of your hard earned assets and your partner’s will be used to pay for care fees. With typical annual costs at £29,250 for residential care or £39,300+ where nursing is required (PayingForCare) this is a very real risk that couples should have in mind when arranging their affairs.

Fortunately there is a way for couples to deal with all of these concerns.

‘Joint tenants’ or ‘tenants in common’?

The first step is to find out if any properties that you own jointly with your partner are held as ‘joint tenants’ or ‘tenants in common’. If they are held as ‘joint tenants’, this means each of you owns 100% of the property – there is no divisible share. If one of you dies, the other continues to own 100% of the property. However, if you own the property as ‘tenants in common’ you can each deal with your share separately.

Protecting your share of the assets

It is possible to change how you hold any properties from ‘joint tenants’ to ‘tenants in common’, if necessary. This allows you to make a Will specifying that should you die first, your partner will have use of your share of the property during his or her lifetime – after which your share will be inherited by whoever you choose (e.g. children/grandchildren). Your partner can similarly leave their share of the property in trust to you so if they should die first, you can use it during your lifetime, after which it will go to whoever they choose.

If you should die first and your partner remarries, your share of the property is safe.

An added benefit of this arrangement is that if you should die first and your partner needs care, the Local Authority cannot consider your share of the property when conducting a means test.

A further consideration is that sometimes, children get into financial trouble or find themselves party to divorce proceedings. If they inherit a portion of your estate before the divorce is finalised, their ex-partner may take 50% as part of the settlement – or creditors may seize the full amount to settle debts. With a trust arrangement, the trustees can hold off paying the children their entitlement while that sum would be at risk.

Other joint assets

Keep in mind that some other assets held jointly, such as a joint bank account, will generally automatically pass to your partner on your death – regardless of anything you write in your Will. This is because joint bank accounts are typically held as ‘joint tenants’ with each person owning a 100% share. If you have substantial sums in joint savings and bank accounts, the same risks mentioned above apply. Speak to us about possible solutions to this.

We have produced a free information pack about Mirror Wills, bloodline issues and other useful information to help you plan your estate. This is available by calling 08700 120 130 or emailing info@aprilking.co.uk. You can also order your pack online by clicking here.

Visit us

We have 19 offices across the Midlands and we can also cater for home visits. We would be happy to answer any questions you have or discuss making a Will with you, without obligation. Just telephone 08700 120 130 or email info@aprilking.co.uk to make an appointment with your nearest office.

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