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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I am in my mid 60s and about to be married, having been divorced

Resolved Question:

I am in my mid 60s and about to be married, having been divorced 5 yrs ago. I am retaining my own house as is my fiance. What is the best way to protect my property and ensure that only my children inherit it on my death - it has been suggested that I put it in trust for my 3 children and myself (with provisos that I can sell and buy another if I wish), or that I transfer it to them and myself as tenants-in-common or would simply making a Will leaving it to my 3 children be adequate safeguard for my property? Thank you
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

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.

Joshua :

May I ask the approximate value of you a) your house in question and b) your estate overall including the house - the reason I ask is for the purposes of inheritance tax (which I appreciate is not the focus of your question) though it is pertinent?

Joshua :

Notwithstanding your desire to protect you assets from your spouse would you be content to otherwise place your property into a trust? i.e. would you consider doing it if you were not marrying?

Customer:

At present day values my estate is unlikely to exceed £280,000

Customer:

I would not be thinking of putting my property into trust other than because of the forthcoming marriage. A Will Trust, Trust Deed, a Will leaving everything to my children or simply transferring it into their 3 names and mine as tenants-in-common are being suggested and I really don't know which is best and safest!

Joshua :

Thank you. On that basis there is no inheritance tax to concern ourselves with.

Joshua :

There would appear to be two components to this potentially. The question of safeguarding your assets from any marital claim in the event of a future divorce and secondly safeguarding your assets against any future fees for care provision in the future. The latter is probably too far off to be considering to carefully at this point as if you ever were to need such care it would not likely be fore many years but some people do like to think of this earlier in their lives than later.

Joshua :

In respect of your assets. This should be relatively simple. Following the case of Radmacher, pre nuptual agreements do have considerable weight in law providing they are prepared properly through a solicitor. Accordingly a pre nuptual agreement between you and your fiance should adequately protect each of you against any claims by the other. From there it is just a question of making sure your will is in place and up to date.

Customer:

I knew that IHT would not be a problem and hopefully care fees would be many years away - my only concern was to ensure that the property would not go to my future husband's family who will be more than adequately provided for by his estate. My aim is simply to ensure that my children inherit my home which I have worked very hard to retain and to pay for.

Joshua :

Any existing will you may have made will be automatically revoked on marriage. In order to prevent this you must either make a new will after marriage or a new will before marriage ensuring that it includes a clause that you are making the will in contemplation of marriage - this will prevent it from be automatically revoked. You can then make provisions in your will as you see fit. A pre nuptual agreement can be considered by the courts in the event your fiance were to make an Inheritance act claim against your estate though there are as yet to my knowledge no reported cases on the point

Customer:

I was under the impression that pre-nuptual agreements were only relevant in England in the case of divorce and not death. Perhaps you could clarify this for me.

Joshua :

A trust arrangement would add a further lawyer of security beyond that of a prenup in that in rspect of such property you place into trust you no longer own and subject to a potential ability to reverse such gifts into trust for up to 5 years from the date of the gift a court cannot order claims against such property. However by placing a property into trust you give up a certain measure of control over the property

Joshua :

Regarding your last post - may I ask which country this relates to please?

Customer:

I thought that pre-nuptual agreements were only relevant in England in the case of divorce and would not be considered in the case of death. Could you please clarify this for me. Obviously a new Will has to be made after the marriage and should this contain a Will Trust? Thank you.

Joshua :

May I clarify in which country you live and will live following your marriage please - England Scotland Wales or NI?

Joshua :

Would you like to continue?

Joshua :

I will be logging off shortly so in the hope that the following is of assistance - Radmacher only applies to England and Wales so would not apply if you are living in Scotland nor I think NI and I cannot advise what the position is in either of those countries as I have no detailed legal knowledge about those countries. The case law in respect of pre nups and Inheritance Act claims is practically non existent but the opinion of counsel is that pre nuptual agreements are very likely to carry weight in respect of such claims as there is no basis to have one set of rules for divorce and another for Inheritance Act claims. The two have always followed each other closely in terms of financial provision although they are based on different pieces of legislation.

Customer:

We will be residing in my house in Gloucestershire, England. He will retain ownership of his house in Dorset which we will use for visiting his family.

Joshua :

A combination of a prenuptual agreement and either a life interest or discretionary trust in your will for your future spouse should provide a formidable degree of protection for your assets. The only thing you could do further than this would be to transfer one or more assets into trust though this I would have thought may be better left for a later point in your life as it will necessarily include giving away a degree of control over your assets which in my view it may be rather early in your life to be considering.

Joshua :

Is there anything above I can clarify for you?

Customer:

There does not need to be any provision of a life interest/discretionary trust for my future husband as he will still have his own property and does not intend to make any provision for any life interest in his property for myself. Thank you.

Joshua :

The inclusion of a discretionary or life interest provision is entirely up to you. It does not need to be included in your will if you do not want it to. Provisions in your prenup could include what you have both agreed and declarations that neither of you expect financial support during your life nor after your death. They are not binding on the courts but such prenups as above do have effect during your life in the event of any divorce and it follows that they will have impact on any attempted claims after your passing.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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