, Mar 28 2020 09:51 PM
14 replies to this topic
Posted 28 March 2020 - 09:51 PM
So DH and I are remiss and don't have a will. Now seems like a good time to do one.
I was just going to get a will kit and do it ourselves because I don't want to leave the house anymore than I need to.
So my question is DH has 2 girls from his first marriage. We have DS together. DS is 3 and the girls are 15 and 17.
If we both died, what is fair for a split between the kids?
At this point, I would think we should leave money for the costs of raising DS (to whomever we decide to give guardianship). Not sure if that should be a set amount or they can use whatever is necessary. But then maybe we either leave the balance or a set amount for the kids.
Do we split it 50/50 and then DS gets my 50% and then DH's 50% get split between *his* 3 kids? The girls Mum is in the picture btw.
Even just typing this, I am getting the feeling that we need legal advise. A will kit may not cut it.
Is that something we can possibly do by email? Is that a *thing*? Or a skype or zoom call?
I'm really regretting not doing this when I thought of it in Jan TBH, but I was avoiding going out then because of the bloody smoke!
Edited by FeralRebelWClaws, 28 March 2020 - 09:54 PM.
Posted 28 March 2020 - 10:00 PM
Yes of course you can do it via email and it sounds like you definitely need legal advice.
We've been remiss too and I contacted my lawyer recently and they're now doing everything remotely (as they should) in any case.
Posted 28 March 2020 - 10:05 PM
I think your situation sounds unsuitable for a will kit. I used a will kit once ages ago, but that was before we had any children and I just left everything to DH.
With your children’s ages you might want to consider leaving money in a trust for them. A lawyer might be able to help you via phone call / email etc, it might not be necessary to have an actual meeting in person.
Posted 29 March 2020 - 12:08 AM
You need a solicitor. If you leave differing amounts to each child it needs to be clearly articulated why you chose to do so and why it was a reasonable and fair choice to avoid the will being contested.
Posted 29 March 2020 - 12:33 AM
Our solicitor advised us to put the guardian’s allocation into a trust so that it doesn’t become part of her family assets. If something happened to her, or she and her husband were to separate, our children’s financial requirements would still be protected by the trust. She is the only nominated trustee for that portion. There would also be a trust for the children’s shares, the guardian would be one of the trustees for that, but not the only one.
Posted 29 March 2020 - 05:11 AM
We have a similar scenario. Me with a 11 yo from previous marriage, and we are trying for more children.
We split all our assets equally, between my daughter and any further children. All assets once split to go into a trust managed by my parents (if they are deceased or choose not to, then there is 2 x back ups) to be used for living costs/expenses u til they are 25. At 25 the funds are then turned over to the children.
Not perfect as the different in ages will mean gets chewed up with living expenses, but the people we have chosen we know will ensure our children have an amazing life even without us.
Posted 29 March 2020 - 05:37 AM
You absolutely need a solicitor.
Even with one marriage, and one child, the solicitor made great suggestions that we'd never have thought of.
I have a relative with one child with her partner, and several children from a prior marriage. She said if anything happened to her, he'd do the right thing by her other kids (whom he doesn't see very often). They just had the basic, leave to each other.
I asked her what would happen if he met someone else, a woman with whom he had children, one of whom required full time care .... roll down the track ten years.
It's difficult to cover every eventuality, but you can cover many of them.
Posted 29 March 2020 - 03:29 PM
We have a situation where there were two marriages
A and B = 1 child
C and D = 3 children
Then both marriages split, and A and D got together.
A and D = 1 child
The split (from A and D's wills) is going to be divided 6 ways, one share each to the first four children, and two shares to the child of A and D. This was worked out because the first four children all have another parent to inherit from, but the child of A and D will only inherit from the final will of A or D. All of the children think this is fair and reasonable.
A "fair" split between the kids, isn't necessarily an equal split.
Definitely go for legal advice, it can save a lot of heartache.
Posted 30 March 2020 - 07:47 PM
Another thing to consider is the timing of the sale of the house.
If you die when your DS is 18 or 19 you might want him to have a few more years in the family home before it is sold.
We put a clause in our will stating that the family house was not to be sold until the youngest child had reached 25 yrs (so long as that child was still living in the family home at the time of our deaths)
Posted 31 March 2020 - 11:17 AM
^^ We wouldn’t put something like that in ours. Assuming our 3 children go to our nominated guardian, there will be a total of 6 children to accommodate. Neither house is big enough for that.
Posted 31 March 2020 - 07:51 PM
Bucket, we were thinking either 50/25/25 or more fairly my 50 to DS and then DHs 50 gets split into 13.3% and each of the three kids gets one of those. DSDs will be quite comfortable from the other side of their family. Poor DS won't be getting much! It would also be likely that we'd need to adjust it as they get older.
Yeah we need to figure out who the guardian would be. Because right now, probably my Mum (assuming she's alive if we go), otherwise we'd have to go a relative who doesn't live where we do.
But if it's in a few years and one of DSDs were willing to, then we'd maybe do that (I'm thinking in like 10 years or something when DSD17 would then be 27. In which case then DSD could live in this house with DS (and with my Mum maybe, if she's still alive.) But my Mum is 71 now, so her raising DS until he's 18 would be unlikely.
So yeah we need to figure out who first and then worry about getting it legal! I am guessing there that no matter what we decide, we will need a trust.
Thanks everyone! Now I need to research solicitors!
Edited by FeralRebelWClaws, 31 March 2020 - 07:53 PM.
Posted 31 March 2020 - 08:57 PM
Also, don’t forget that whatever you decide now can be changed. As your older children get to an age of being able to care for the younger one, you probably will need to re-write it. Our eldest is 14 now, and in a few years, we will certainly re-do ours.
Posted 31 March 2020 - 09:27 PM
The difficulty (and I lived this with mums will and step dad) is you make wills now but then one dies and the remaining one can then do exactly what they (or their new girlfriend) wants. Yep, seen it so many times.
Ideally you'd want to try and finalize it at the death of one parent. Consider things like not having the house go automatically to the other parent (also needs to be considered if the house is held as joint tenants or tenants in common). Maybe leave half the house directly to the children in whatever portion and give the surviving parent a life tenancy. Basically the ability to live there as long as they want, for life, but not ownership.
This is prob more important when its a second marriage where each has kids from the first but no kids together.
You cannot legally make the second surviving parent leave something you left to them to anyone. Once that first parent is dead and they get the house then later down the track it is easily absorbed into their new relationship and the kids have no guarantees of anything.
Everyone wants to believe their loved one just wouldnt do that. Sadly they do. I've seen it. I've lived it.
And it's not even the case the surviving partner does the wrong thing. Their new partner can challenge any will of theirs even if it does leave things to the kids. If they have a need and have been taken care of previously, they would generally win or at least drain an estate.
I would definitely recommend a specialist lawyer. Not just the local guy. And have a good think how you can protect everybody.
I know this sounds doom and gloom but it happens and it's by people who are lovely and loved their lost one dearly but life, new partners etc often mean what they both intended just doesnt happen.
Posted 31 March 2020 - 09:51 PM
I’m a lawyer. You need a lawyer. Really everyone does, will kits are a good stop gap if nothing else is available but this is what lawyers are for. It can be done without going in to the office. I’d recommend investigating some of the estate being put into a trust for your DS in the event one of you dies. Do powers of attorney at the same time, it’ll be cheaper than doing it separately.
Posted 01 April 2020 - 07:32 AM
A cautionary tale 1). Husband and wife had made good money and bought an investment property for each of their children, but still in their own names. They lived in a Very Nice house themselves, but not even being 60 yet, they were not ready to downsize.
Along comes early onset dementia for him, and he needs to go into aged care. Of course with that level of assets, the fees were considerable. Although they had high non-liquid assets, they didn't have the liquid assets or income to cover the fees, much less the bond.
Cue family fallout, with the four 30 - 40yo siblings suggesting the mother should downsize to release the necessary funds. Understandably, with her world turned upside down she didn't want to do this.
I believe in the end they resolved it by the three putting in the necessary cash for the fees and interest on the bond.
Just because you're extremely nice to your children doesn't mean they're going to be nice to you in return.
If you want to give stuff to your kids, give it to them. What you leave them in your will is not available to them until you die.
Cautionary tale 2) If you leave someone a life interest in a property, that means that's the only place they can live in, whether it suits their needs or not. Back in the days when, if a woman married, her husband took control of her assets, my grandfather (who died young) left his house to his three children, but with a life interest for her. He did this so no one could sell the house out from under her. Problem is she never had the funds to maintain it, and it degenerated significantly until she went into aged care. Of course if my mother and uncles had been the types of people to Get Things Done, then it could have been easily resolved.
There's also an issue for aged care, given the current funding model, so I'd be checking that out before leaving an older person with 'part' of a house.
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