We recently had a couple come in wanting to prepare their Wills. The husband was a few years older than his wife and they had two children together. The husband wanted to ensure that his children’s inheritance was protected in the event that his wife remarried after his death. The wife was adamant that she would always have the children’s best interests at heart and ensure their assets were passed down to them.
However, the husband was still concerned as he had heard of situations where the surviving spouse had remarried and inadvertently left the assets of the marriage to the new spouse and the children were left with very little, if anything at all.
This is a common scenario and one that should not be disregarded. There are a number of options in place that can be considered to protect your children’s inheritance.
About Goughs: None of us know what the future holds and so, whatever your age, it helps to plan for what will happen to your assets after your death or if you lose your ability to decide. Our team of specialist wills and probate solicitors, power of attorney solicitors and estate planning solicitors are available to advise you on the best way to protect your wealth for the future, provide for your loved ones and minimise tax.
Topics to be answered in this article
Mirror Wills
Most couples have “mirror Wills”. These are Wills that will leave all of the assets to the surviving spouse absolutely and then on second death to the children. Whilst this ensures the survivor has absolute freedom to use the assets as they wish, this leaves 100% of the assets open to vulnerabilities during the lifetime of the survivor, such as remarriage. If the survivor remarried and did not update their Will, then 100% of the assets would pass to the new spouse on death. The children would then receive nothing.
However, there are other alternatives which may offer more protection and not leave your children’s inheritance up to chance.
Life Interest Trusts
The use of a Life Interest Trust in a will can protect one half share of the capital in your property and any assets in the sole name of the deceased spouse (i.e. 50% of the assets). This 50% share of the assets will be held within the Life Interest Trust for the benefit of the surviving spouse. This means that the survivor will continue to be able to live in the family home and will receive an income from any other assets. However, importantly the capital value of the 50% share of the assets will not be included in the survivor’s estate should the survivor’s financial circumstances be subjected to potential vulnerabilities, such as remarriage.
The Life Interest Trust can either protect just a half share of the value of your home or it can protect the half share of the value of your total estate. If you only protect the half share value of your home, the survivor will then have access to the remaining capital in your estate.
Therefore, if the survivor remarries, the assets held in the Life Interest Trust will be due to your children absolutely on the death of the survivor rather than to the new spouse.
Discretionary Trusts
Another option that can be used to protect your assets and ensure your children receive an inheritance is a Discretionary Trust.
This is a type of Trust where your assets are held by a number of people (usually two) who you have chosen, called your Trustees, and they hold these assets for a pool of chosen beneficiaries. It is at the Trustees absolute discretion how, when and to whom the assets are paid to out of the pool of beneficiaries. Importantly, no beneficiary has a right to receive assets from the trust, they instead only have a hope of receiving at the Trustees discretion.
You would prepare a letter of wishes, which can be updated throughout your lifetime, to set out your reasons and wishes for the distribution of assets from the Discretionary Trust. The letter of wishes is not legally binding but can help your Trustees in understanding your reasons for setting up a Discretionary Trust. Whilst you cannot guarantee that your Trustees will distribute your assets in accordance with your wishes, it will allow your Trustees to react to the circumstances of your beneficiaries at your death and their ongoing circumstances following your death.
This type of Trust is very useful for complex situations where the circumstances of your beneficiaries are unknown at the time of writing your Will, such as suffering from health conditions or other vulnerabilities (for example, addiction).
If you’re a high net worth individual and want to distribute assets on death to your children, whilst also benefiting your spouse but you do not know what the exact financial picture will look like at the time of writing your Will, a Discretionary Trust can be a very useful tool so that distributions can be made in accordance with the specific financial circumstances at your death, rather than in accordance with a predetermined set of rules in your Will that was made many years before your death.
Leaving gifts on the first death
Another option that is available is to give gifts of assets to your children on your death and then leave anything remaining to your spouse. For example, you could leave gifts of money to your children and your home to your spouse.
This will ensure that your children will receive an inheritance from you directly and does not involve any potentially complicated trust provisions or uncertainties. However, this may disadvantage your spouse as you will not have as much to leave to them either directly or indirectly via a trust.
As you will see there are many different possibilities available and no two persons’ circumstances and wishes are the same. It is therefore important that you decide what is right for you, your spouse, your children and your circumstances.
An increase in statutory legacy
As from 26 July 2023, the fixed sum, known as the ‘statutory legacy’, passing to a surviving spouse or civil partner when a person dies leaving children and without having made a valid Will, has been increased to £322,000. This has increased from £270,000 which has been fixed since February 2020
The intestacy rules provide for a deceased’s estate to be distributed in a certain way depending on the value of the estate and the surviving family members. If the deceased died leaving no children, then everything passes to the surviving spouse or civil partner and the statutory legacy does not apply. If the deceased had children, the surviving spouse or civil partner inherits the personal belongings, the statutory legacy and 50% of the remainder, with the other 50% passing to the children equally.
Where the deceased is unmarried with no children, the estate passes in accordance with a hierarchy of family members, depending on who survived the deceased. It is worth taking note that unmarried partners have no entitlement under the intestacy rules, even if they lived with the deceased as if they were married.
How can Goughs help?
Our expert team of solicitors provide bespoke advice on all aspects of wealth planning for high net worth individuals. We find practical solutions to meet your objectives in relation to tax efficiency, asset protection and succession planning.
To get in touch, please complete the form below or email us on info@goughs.co.uk.
