It is very tempting to name your spouse as the sole beneficiary of your estate on first death. Many couples make mirror‑image wills, leaving everything to the survivor outright and then, on second death, passing the estate to children or grandchildren.
There are good reasons for this approach. It is clear, familiar, ensures the surviving spouse is provided for, and can make the administration of the estate simpler after the first death.
However, is it always wise?
Potential drawbacks of leaving your estate outright to your spouse
Leaving assets outright means you lose control over what happens next. Some key risks include:
- Remarriage
The surviving spouse could remarry, giving a new spouse potential claims against the estate. - Care fees
If the survivor later enters nursing or residential care, the estate could be significantly reduced by care costs. - Changes to the will
The survivor is free to change their will in ways you may not have intended or approved of. - Loss of capacity
The survivor may lose mental capacity at a time when, for personal or tax reasons, changes to their will would have been preferable.
How a trust in your will can help
Using an appropriately drafted trust in your will can help avoid these issues while still ensuring that the survivor of you is properly provided for. A trust can:
- Protect assets for children or future generations
- Provide security for a spouse without giving away full control
- Safeguard against remarriage, care fees and unintended changes
- Offer flexibility as circumstances and needs change
Taking the right advice
There is no single “right” trust for every family. The type of trust you should use will depend on your personal circumstances, family structure and objectives.
For this reason, it is always important to take advice from a specialist solicitor to ensure your will is tailored to your needs and provides the right balance between protection, flexibility and simplicity.
How we can help
Catherine McCannah is a Partner in our expert Wills and Probate team. Her areas of expertise include Wills, Inheritance Tax planning, administration of estates, grants of Probate, grants of Letters of Administration, Powers of Attorney, administration of affairs, Trust creation and administration, declarations of Trust and residential care fee planning/protection of assets.
If you require any advice concerning the subjects discussed in this article, please contact Catherine or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact usIf this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.