08/12/2021
I thought it might be worthwhile correcting a couple of misconceptions concerning estates and inheritance.
First misconception, In England there is no such thing as a common law wife or husband. So if you and your partner do not have any form of a legal document tying your estates together i.e. a marriage certificate, then there is no automatic transfer of an estate in the event of death. No matter how long you have been together. In other words, your Partner will not automatically inherit from you. If, like many people you were previously married and you are separated but never went through the formality of a divorce involving a decree absolute, then sadly your ex-spouse is still your next-of-kin and yes, he or she will inherit your estate.
If you have children from your previous marriage below the age of majority (18 years) they cannot inherit directly and the courts will appoint a guardian for the children and yes again, it will probably be their mother, even if you are divorced. This will be because as you are not married to your current Partner; your children are your next of Kin and yes again, your ex-spouse as their appointed Guardian will also have access to your estate on their behalf. You might say ‘that’s ok because I am happily married and if I die it will all go to my wife anyway so I don’t need a Will. Wrong again. Testacy law states that if you are married with no Will (die intestate ) your wife/husband will get £250,000 and the rest goes into trust for her/him and your children. (a life interest)
The only way to guarantee your estate goes where you want it to go is by writing a Will. But it must be a good Will and not an off-the-shelf document as that could be worse than no Will at all.
Second misconception, Is to do with property. Many people have thought it a good idea to put their house in the name of their children. It would appear to make sense, ‘we are not going to move again, when we die it is all going to the kids and it will stop the local authority taking it if we have to go into care’. Although this would appear to be a sensible approach and sadly I have to say I have come across a number of Clients where this has been done on professional advice. It is a big mistake. Under such an arrangement the only rights you have are those of a normal residential tenant. If one or more of your children are married and were to divorce, your house will form part of a divorce settlement as one of their assets and may have to be sold. Or if one of your children is declared bankrupt the bank can take the property as part of your child’s assets. Worse still, if one of your children were to die, their share of your house will be transferred to their spouse and if she re-marries? I leave you to work that bit out for yourself! If none of this happens and you and your spouse die and the children decide to sell your house they will face a very large capital gains tax bill as they will have sold their share in a second property.
The only safe way to transfer the property to the children is via a Trust which gives you protection and the right to stay in your property. In other words no one can put you out of your home or force it’s sale.
If I have given you something to think about and you would like to discuss it please give me a call on 07771905936 or email me on [email protected]. Also a video call on messenger or WhatsApp. I can discuss your situation and take an instruction from you without having to meet in person. Peter Marriott-Lodge BEM MSWW
The Marriott-Lodge consultancy, Specialist Will, POA and Trust Writer Please share this with your friends