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How can you be certain that your children will receive an inheritance if you die before your spouse and they remarry? 
 
This is a real concern for many people I speak to. Nowadays there are many different types of families, following separations and divorces resulting in a more complex family situation. 
 
If you make traditional mirror wills, leaving everything to your spouse and an agreement that on second death, everything will pass to your children, how can you be sure that if you die first and your spouse remarries, your children will get any inheritance? On marriage, or in this case, re-marriage, the will is invalidated and a new will would be needed. What if your spouse set up a similar arrangement to yours and left everything to their new spouse, on the understanding that on their death everything would then go to the children. If your spouse died first, there would be nothing to stop the new spouse from changing their will altogether, cutting your children out completely. 
How can you be certain that your children will receive an inheritance if you die before your spouse and they remarry? 
 
This is a real concern for many people I speak to. Nowadays there are many different types of families, following separations and divorces resulting in a more complex family situation. 
 
If you make traditional mirror wills, leaving everything to your spouse and an agreement that on second death, everything will pass to your children, how can you be sure that if you die first and your spouse remarries, your children will get any inheritance? On marriage, or in this case, re-marriage, the will is invalidated and a new will would be needed. What if your spouse set up a similar arrangement to yours and left everything to their new spouse, on the understanding that on their death everything would then go to the children. If your spouse died first, there would be nothing to stop the new spouse from changing their will altogether, cutting your children out completely. 
 
This may seem far fetched and unlikely but there have been many cases where this very situation has happened. 
 
Stuart Herd is a compaigner in promoting the dangers of mirror wills, having had personal experience when after his father's death, he never received a penny from his estate - all this happened completely legally. Stuart's late father, William, got re-married to Stuart's step-mother, Dorothy, and took legal advice in drawing up their new wills through their family solicitor. They had a pair of mirror wills. 
 
Stuart believes that it was his father's intention to protect Stuart and the family inheritance which had been built up over generations, whilst ensuring that his wife, Dorothy, was looked after during her lifetime. 
 
However, after William's death, Dorothy changed her will, leaving everything to her own son, hiw wife and her grandchildren, cutting Stuart out completely. This, Stuart only found out after Dorothy's death, so he has never been able to receive an explanation for this course of action or get any closure on it.  
 
Stuart has tirelessly appealed for changes in the law and to raise public awareness of the dangers of mirror wills, when after speaking to the family solicitor who drew up the will, he found that the only records they held were the wills themselves, no attendance note explaining the conversations whcih took place. 
 
Stuart story has been published in many national newspapers including the Daily Mail and has appeared on television progammes BBC Breakfast and Rip Off Britain. 
 
So what can be done? 
 
There are ways you can protect your family from this situation and that would be to look into different types of Trust. 
 
Life Interest Trust/Property Protection Trust 
Firstly a check would be needed to ascertain how you own your property - Joint Tenants or Tenants In Common. If you have a copy of your deeds, there is wording in section B Proprietorship, which will confirm the ownership status. If not, a copy of the deeds can be looked at on the Land Regsitry site at a cost of £3. 
 
To set up a life interest trust on your property, it would need to be owned as Tenants In Common. If it is owned as Joint Tenants, this can be changed using the Land Registry's SEV form at no cost. When you each own a percentage of the property (normally 50% each) you are free to leave your share directly to your children (or another beneficiary) in your will and at the same time, instructions would be detailed in your will to give your spouse a 'life interest' or right to remain in the family home either for the remainder of their life or until they remarried. This will protect your share of the property for your children, which is usually your biggest asset. 
 
If you have a large estate comprising of second property and/or investments as well as your main residence, you may want to consider a family trust or asset protection trust. 
 
This differs from a life interest trust as it is a trust set up during your lifetime and not just instructions in your will for a trsut to be set up on your death. The trust can hold different types of asset, including property and investments. You would be a trustee, meaning that you retain control of decisions during your lifetime but the assets within the trust will be protected for your beneficiaries, usually your children. 
 
An additional benefit of this type of trust is the fact that although your children will be potential beneficiaries of the trust, they won't own the assets themselves, so if they find themselves in a separation or divorce, the assets are protected and their spouse would have NO entitlement to a share of those assets. This avoids what is commonly known as sideways disinheritance. 
 
The history of trusts goes back to the 12th Century so it is not a modern concept but the law has been updated over the years. Most of the wealthiest families in the UK make full use of Trusts and as a result, their beneficiaries pay very little, if any, inheritance tax. With MPs and Lords utilising trust arrangements for their own affairs, it's fair to state that Trusts are here to stay. 
 
So, what do you need to know? 
 
Heritage Estate Planning will advise you on the most appropriate type of trust for you as part of our comprehensive fact find when taking instructions for your will. We work in partnership with a sepcialist trust provider and several Independent Financial Advisers to ensure the advice you receive takes into account your whole situation including taxation. 
 
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