Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
May I clarify that you want to allow your husband use of your money and assets but that you want your children to have it after his passing please?
Do you jointly own a property together with your husband?
Yes that is correct. I want my husband to have use of the money etc. But upon his death, I would want my half/ or half
of what is left to go to my two sons.
I do jointly own our property.
Thanks. Does your husband have sufficient capital (cash and investments etc) in his own name to support himself to the standard you would both expect if he were not to have the ability to spend capital presently in your name do you think?
Not really. We have property and land in both our names. All I am concerned about is that for instance if he met a new partner and might either not write a will or leave to new partner. I just want to ensure that what would have been my half of the estate would still go to my children. I don't know if I could write this in a will and for it to be legally binding. Or would I have to set up a trust in order to do so ?
thanks. It is quite possible to do as you propose. It is known as leaving a life interest in your will. A life interest means that the person you give a life interest to-hear your husband-has the right to benefit from and use the asset or assets in question for the rest of his life but that after his death, the asset or assets passed to a third party-here likely your children from what you say
the use of a life interest trust is very common and has a number of potential benefits in addition to ensuring that you can ensure the ultimate destination of the asset or assets. for example, a life interest trust can protect against the possibility of the local authority claiming much of your property in the event your husband to enter into care
Thanks, XXXXX XXXXX I set up the life interest in my will. Could I do this myself or would I have to do this via a solictor
you do need to be slightly cautious that you do not believe use a life interest in your Will though. the reason being is that a life interest gives your husband a right to use and benefit from the assets you leave in a life trust but he cannot spend any Capital left on this basis. Everybody needs to be able to have access to capital to spend on day to day expenses and so you will wish to ensure that you leave sufficient capital absolutely to him in order that he has sufficient capital to maintain himself
in many cases, if you are a property together, it is worth considering placing your half share of the property into a life trust and leaving sufficient money to your husband absolutely so that he has sufficient capital to support Himself. If there is further capital leftover beyond his needs, you could consider placing this in a life trust alongside your half share in the property
trusts are technical and it is not possible to set up a life trust in your will yourself on a DIY basis unfortunately. Will writers do offer the service but many lack the qualifications to fully understand and advise upon trust law and given the importance of getting the trust right both from your point of view and the point of view of your husband, I would only recommend a qualified solicitor to advise and implement the same
costs of setting up a life interest will with a solicitor can range from £200 - 400 + VAT. you may be able to obtain a cheaper quote with enough persistence
Is there anything above I can clarify for you?
That is great. So to clarify, It would probably be best to set up a trust. However I could also do this in a will ( joint will ? as my husband wants the same visa versa). If we do set up a life interest in a will, would we be able to do this at home, and how and what would we have to write in. Or are you saying that adding this in a will would be legally binding, but can only be done/you would recommend for it to be done by a solictor ?
Yes setting up the trust within your will is likely to be better than creating a trust now is by doing so now, you will restrict your own access to your own property which I suspect is not what you would wish. It is very common in such situations for couples to create mirror Wills which as the name suggests, mirror each other's provisions there is no requirement that the be absolutely identical.
it is not really possible to create a life interest trust will yourself unless you have considerable expertise with regards XXXXX XXXXX instruments and a solicitor will be recommended they some will writers do offer the service
Sorry am getting confused ! setting up a trust within your will ? I thought you meant that within the will you would add correct wording stating that there is a mutual life interest ? So are you saying that you can not do this yourself in a will drawn up at home. Please could you clarify. Thanks
Sorry - to clarify. A life interest trust can be added to your will and will be legally binding on your death exactly as you say. However it is not possible to just add a simple clause to your will yourself. A life interest trust in your will must be drafted by a qualified solicitor or at least a will writer in order to ensure it is binding as you wish it to be. Your title deeds also need to be check to ensure that you hold the property jointly in the correct way. All of this is very straightforward for a solicitor to achieve but it is not something that you can do yourself without the appropriate expertise.
However although you would need a solicitor or will writer to assist you, as you say to provide for a life interest trust all that is needed is for the appropriate clauses to be included without your wills and your title deed checked.
Ok. I've got it ! so final question is the option of the Mirror Wills ? can these be done at home & would they be still legally binding or would we need a solicitor in order to do these.
So to be clear a mirror will is basically just two wills - one for each of you - which broadly speaking work together and mirror each others provisions. You can choose to or not to include a lilfe interest trust within each of your mirror wills or not. If you choose to include a life interest trust within your mirror Wills then my recommendation would be that you employ a solicitor to prepare your Wills for you, whether he visits your home or whether you go to the solicitors office. if you decide you do not wish to include a life interest trust within your mirror Wills and just want some very simple Wills then it is quite possible to prepare DIY wills at home using a will pack from WHSmiths or something like that.
Ok so if we did decide to each do a mirrored will, both stating that upon either of our deaths, the entire estate would go to the other partner. however after the other's death that the first persons wishes would still go to the children as requested. So this would still be legally binding ?
Sorry are you asking if you wrote the above words yourself into your wills would this be legally binding as a life interest trust?
No it was whether we would have to include a life interest trust in a mirrored will to make it legally binding. or could we just write down our wishes and that would be legally binding in later years.
If you want to make a legally binding life interest trust it should be prepared properly as we have discussed. It is quite possible to just express a wish as you suggest but this would not be legally binding but just an expression of a wish. It could be ignored.
Ok that is great. Thank you for your help. Carole
A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me
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