Wills and step children

alm721

Can anyone offer any advice. My mum and step dad have no will and are wanting to get one done. They have basically come up with the idea that if one of them dies, everything goes to the other partner and then on the second death everything is split between the children (there are 5, I have 2 brothers and 2 step siblings). The problem is my step dad is reluctant to do this as he is worried that if he died then my mum could remarry and cut his kids off. She also has concerns the other way as this did actually happen to my grandad. Basically is there any way that they can write a will whereby this could actually happen. The problem is if the dont write one there is quite a lot of money involved and either partner would have to find a lot of money to pay off the others children. Neither want to put the other in this position but similaly want to make sure their kids dont get disinherited.
It is complicated furthur by the fact that my brother is severley mentally disabled and they would like his share to be put in trust for him. As is stands my step dad does not want to sign the will but Im worried, particually with regards to my brother that if anything happened to my mum then my dad (also my brothers dad) who has had sod all to do with my brother would suddenly decide that with a large inheritance he may want to be his father after all as I believe he will be leagally next of kin.
Other then trying to pursade them to sell the lot and enjoy the money (which my step dad wont do) what advice can I give them? Can my mum just write a will on her own to say that my brothers share of whatever she has goes in trust, would anyone give any other advice? I'd be really grateful to hear of anyone in a similar situation and what they have done.
Thanks

localhero

Hi Alm721,

Your mother and step-father are right to have concerns about leaving their estates to each other, as ultimately the children will be at the mercy of the survivor of them not making a new Will leaving the entire estate to their own children - or remarrying.

There is a straightforward solution however. First of all they should ensure the assets are owned individually rather than jointly (ie the house and savings). This may require changing the ownership of the home from joint tenants to tenants in common - a straightforward task.

Each parent then simply leaves their own share of the estate to their own children. This is perfectly fair and logical and this need not be to the detriment of the surviving spouse, as the gifts made in the Will of the first spouse to die can be postponed until the second of them dies. The survivor of them can make use of the assets (ie continue living in the house etc) whilst ensuring that the capital is safeguarded for their own children.

It would be wise to include a discretionary trust to administer the gift for the disabled child for a number of reasons - though they should take care in their choice of trustees, as they need to be impartial.

This need not cost a fortune to organise, and can be arranged in a tax efficient way to safeguard everyone's interests.

alm721

Many thanks for the response. I will pass it on to my mum and dad and see what they think. The only problem I can see is that they intended to split everything they have equally between 5 of us. If they leave each half to their own kids then 2 end up with 25% while 3 have 16.6%. Is there any way around this do you think? Thanks again

localhero

Hi,

They can each divide up their estate in whatever percentages they wish.

The important thing is that they will have certainty in that their estate will pass to whom they wish.

belfastgirl23

Could they agree to divide the estate 60/40 so that the partner with 2 kids has 40% to leave and the partner with 3 kids has 60% to leave?

localhero

Hi Belfastgirl23,

They could agree to divide up the entire estate when the second of them dies, but there is no guarantee that the survivor won't remarry or simply make a new Will

The suggestion I made is recommended where there are children from previous relationships. For example a couple have 1 child between them, but H has got 2 children from a previous relationship.

W wants her estate ultimately to go to her own child, but H wants to split his 3 ways. If they set up their Wills sensibly they can both have the absolute certainty of their estates passing to their own children in the shares that they desire.

jennyo

sorry to revive this old thread, but was just wondering if one spouse dies and it does not go through probate, what is to stop the surviving spouse from just making a new will leaving everything to their child, or is there some national register of wills, obviously I'm asking for personel reasons.

localhero

If there is a will, it needs to be kept in a safe place and its whereabouts made known to the executors. It is not unheard of for wills to mysteriously disappear when certain individuals stand to gain by there not being a will.

You can in fact lodge wills at the Principal Probate Registry for a one off fee of £15. Whenever an application is made for probate the authorities will automatically check to see if there is a will lodged there.

http://www.hmcourts-service.gov.uk/infoabout/civil/probate/why_will.htm