Standard Wills for a couple might leave all the estate of the first person to die to the surviving person in the relationship, with the survivor’s estate being inherited after their death by any children in the relationship.
If the survivor inherits the deceased’s estate absolutely, there is no guarantee that it will be inherited by the children on the survivor’s death.
Simon and Jenny are a married couple. They have two children Jack and Jill. Their Wills state that when the first of them dies, the survivor is to act as the Executor to administer the deceased’s estate, which is to be inherited by the survivor.
On the death of the second of them to die, Jack and Jill are to act as the Executors to administer the deceased’s estate, which is to be inherited by them equally.
Simon dies first and his estate is inherited by Jenny. Several years later Jenny marries Jeremy. Her existing Will would be revoked by that marriage, unless she’s amended it to include a specific provision to the contrary.
On Jenny’s death, her estate (which includes what she’s inherited from Simon) would be inherited by Jeremy, unless she’s made a new Will to make provision for Jack and Jill. Alternatively, Jenny might fall out with the children and change her Will to leave her and Simon’s estate to the proverbial cat’s home.
If say Jack is Simon’s child from his first marriage, Jenny might change her Will to leave all her and Simon’s estate to Jill only. This is a real risk that a couple with children from previous relationships should consider very seriously.
To avoid this risk – Life Interest Trusts
If Simon and Jenny had wanted to protect themselves from this risk, their Wills could have left the estate of the first of them to die into a Trust, rather than to the survivor absolutely.
This would often be a Life Interest Trust, whereby the survivor would have the legal right to:
- Live rent free in property owned by the deceased; and
- Receive the income from the invested estate of the deceased – e.g. rent, interest, dividends, etc.
The Will of the first to die states how the Trust fund is to be inherited after the death of the survivor.
How a Life Interest Trust could operate
Richard and Sarah are married. They’ve both been married before. Richard has a son, Robert, from his first marriage, and Sarah has a daughter, Sally, from her first marriage. They have pooled their resources to buy a house together, which they own in their joint names. They also have some savings each.
Richard and Sarah decide to make Wills leaving their shares of their house into a Life Interest Trust for the benefit of the survivor, with the rest of their estate passing to the survivor absolutely. The Life Interest Trust states that on the death of the survivor, Richard’s share of the house will pass to his son, Robert, and Sarah’s share of the house will pass to her daughter Sally.
Richard dies. The house was owned by Richard and Sarah as tenants in common in equal shares, which means his share of this can be inherited according to the terms of his Will rather than pass automatically to Sarah absolutely.
After Richard’s death, Sarah owns her half of the house and is entitled to live rent free in Richard’s half share of the house, as a result of the Life Interest Trust set up by his Will.
Richard’s Will states that Sarah should pay all the outgoings on the property, such as the gas and electricity, and keep the house fully insured and in good repair.
The Will also states that the house can be sold and that Richard’s share of the sale proceeds can be used either to buy all or part of another property for Sarah to live in, to be held on the same terms or to be invested with the income being paid to Sarah.
The rest of Richard’s estate – which is his savings – he decided to leave to Sarah outright so she could use the capital if she wished.
When Sarah dies, the Life Interest Trust in Richard’s Will leaves his half share of the house (or, however, that is represented at that time) to Robert. Sarah’s Will leaves all her estate to Sally.
By using the Life Interest Trust, Richard has guaranteed that Robert will receive an inheritance from his estate after Sarah has died.