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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I recently married and my husband and i made mirror wills. I

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I recently married and my husband and i made mirror wills. I have since come into some money as my father has died. We own a small flat which we let out and is left to our 4 sons in trust when one of us dies till the other dies also. The 4 sons are 2 from each of us. I was worrying that when I die and my husband inherits all my money whats to stop him spending it all and leaving nothing for my sons or maybe he will remarry and then possibly having more children to divide it amongst. My question is shall i invest it all in property so these flats are held in a trust fund and therefore can not be sold to just get money?

Is your concern that if you die, your husband gets everything and then he will cut your children out of the loop?

Customer: replied 1 year ago.
if he remarries for instance, so should i invest the money in to property which is held in trust for our 4 children till we both die?

Thank you. There are a variety of ways of dealing with this depending on the assets are.

For a house, you can leave your share to your children and he lives his share to his children and you both have the provision whereby he has the right to live in your share of the house for life and then when you are both dead, the house passes to your respective children.

With regard to the inheritance that you’ve received, depending on how long you remain married for, if ever you get divorced, if that sometime after getting married, he may have a claim on that inheritance depending on what other assets there are within the married to be divided. I know that you have only just married but at least now you know the situation with regard to the inheritance.

With regard to any cash that you leave to him, he can do exactly what he likes with that. If you leave a substantial amount of cash, you can give him the income from it but not the capital which you can leave to your children. It does mean that your children could not get hold of the asset until he dies. You could however leave it in a trust whereby he gets the income for a period after your death, say, 5 or 10 years and then he no longer gets the income and your children get the capital.

It would be worthwhile speaking in depth to the solicitor that arranged your Wills but do have an idea before you go into that meeting, exactly what you want to achieve. Remember that your husband has exactly the same concerns over you albeit that he doesn’t have your inheritance.

It is possible to do a mutual will (as opposed to a mirror will) where you each agree not to revoke your Wills but they are fraught with problems in enforceability. Here is a little reading on the subject.

Can I clarify anything for you?

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Customer: replied 1 year ago.
please can you tell me, if I invest most of my inheritance in joint properties with my husband to let out , if we leave them in trust to our 4 boys can my husband sell them when I am dead and spend the money?

If you are doing that, it’s easy to resolve by putting a restriction on the property register at the Land Registry that the property is not to be sold without the consent of the boys or putting the property in joint names with them.

If it is in joint names with them, he could force a sale but would then only get 1/5 of the money.

Customer: replied 1 year ago.
if we later decided we wanted to sell it, both of us still alive at this stage , we would still only get 2/6ths of it?
What if we sold it and invested it in another property and made them joint owners of that?
How about this as a solution? .......
Two common forms of restriction1) Tenants in Common – Form A restriction: When two or more people purchase a property and choose to hold it as Tenants in Common, rather than as Joint Tenants, the standard “Form A” restriction is registered on the title of the property. Holding a property as Tenants in Common means that each owner owns a distinct half share of the property and when they die, their half will not automatically pass to the surviving owner. Instead, the deceased’s half share will form part of their estate and will be given to someone in accordance with their Will, for example to their children. The purpose of the restriction is to ensure that, on the death of one proprietor, the property cannot automatically be sold by the survivor on his own (which could circumvent the rights of the beneficiaries of the deceased’s Will). A ‘replacement trustee’ needs to be appointed to step into the shoes of the deceased and be a party to any transfer alongside the surviving proprietor. If the survivor is entitled to the deceased’s share, in accordance with the terms of the deceased’s Will, the restriction can be removed from the register by supplying a death certificate and a statement from the remaining registered owner showing he is solely entitled both to the legal and the beneficial estate in the property. When co-owners of a property are living and the property is held as tenants in common, a Form A restriction alerts third parties to the existence of the tenancy in common and the need to pay purchase monies to all co-owners.

You cannot put the property into different names and then sell it as it was before.

You cannot set up a trust and then simply ignore the trust for future.

Hence either the property is transferred or a trust is set up or it isn’t.

You can do what you like provided the others agree although there is no reason why if you are doing a trust document, you could not have it so that you would be allowed to purchase the properties and sell this one, provided you don’t diminish the capital value.

I tenancy in common restriction simply means that the property doesn’t automatically pass to the survivors on death.