You thought you'd done the right and loving thing. You left
the estate to your spouse or partner in your will. You're
looking after each other. You both assume that when the other
person dies, they will leave the estate to your children.
But what if my widow or widower remarries? What if they marry
someone who has their own children? When my widow/widower dies,
will my estate pass on to this new person and his/her offspring?
What if my widow/widower decides to cut my children out of their
Most people have a huge level of trust that spouses living
beyond them will do the right thing by the kids. But Joshua
Crowther, a wills specialist at Stacks/The Law Firm, warns the law
regarding wills isn't so clear or trusting.
"Put simply, you cannot rule from the grave. If you leave
your combined estate to your spouse, then your surviving spouse can
do with it what they want," Joshua Crowther said.
"I find surviving spouses often change their will and leave
everything to their new partner or their own children, cutting out
offspring of their late spouse.
"Unfortunately there is no law that guarantees the estate
passes on down the line as the first to die may wish, but there are
things you can do to help the inheritance pass down the right
way," Mr Crowther said.
"For example, if you leave everything to your wife on trust
for her lifetime - called a life interest - she gets a legal
interest in the estate. She therefore gets the benefit of the
estate until she dies, then it gets distributed pursuant to your
wishes upon her death."
You can also transfer assets while you are still alive, although
various capital gains tax and stamp duty taxes may apply.
You can also sign an Agreement by which the husband and wife
each release any claim they have against the estate of the other.
This requires the consent of the court.
There are other provisions such as Mutual Wills and Testamentary
Trusts, but these include complex provisions and it would be
essential to get expert legal advice before embarking on this.
"Families need to get expert legal advice to weigh up what
is best for them. This is especially so in the case of blended
families with children from different parents, which can result in
very complex arrangements," Mr Crowther said.
"A willmaker has an obligation to ensure, as far as
possible, the spouse has a roof over their head and enough capital
for unforeseen contingencies."
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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