There is a lot written about making Wills for the so-called blended family, where there is a couple who have children from different relationships and/or children together and the couple may or may not be married or civil partnered.
However, there is a growing demographic of one of the couple’s parents living with the family.
Ash and Les are married, Les’s parent Viv (55) lives alone. The three discuss the situation, and it is agreed that their respective houses are sold and the proceeds of both are pooled together and a larger property is bought. There is a self-contained annex where Viv will live and they will help with the care of the couple’s children.
Viv has another child called Lee who lives with their spouse and children and who is financially independent.
This all works well, but what happens if the couple die in an accident?
What happens when Viv dies?
I think that these issues can be difficult and there needs to be discussion and thought given to the consequences following death.
Ash and Les need to make Wills, to appoint trustees to manage the estate for their children and to appoint a guardian, if the children are under 18. At this stage, one of the trustees could be Viv (two trustees are needed, so the other could be Lee or Ash’s sibling). Viv could be the children’s guardian.
This is only an example and clearly depends on the age of the children and Viv’s ability to care for them. Whatever is decided needs to be kept under review to reflect changes.
In this case, the house can be kept until the youngest child is 18 or 21 and then sold, Viv would receive their share and the children would receive their share.
Viv would then need to move and hopefully their share would be sufficient to buy another home, and the children would be provided for financially.
The reality of this situation isn’t easy, Viv would be in their older years and the move may be an upheaval, but it’s just an example of how to balance the needs of the children and Viv.
It’s essential that any Will is kept under review, remember that a Will remains valid until death unless it is changed (or generally, the person making the Will gets married or civil partnered).
What happens when Viv dies? This is tricky because Viv wants to maintain equality between their two children.
Viv’s interest in the property needs to be defined correctly via a Declaration of Trust which is a legal deed setting out the agreement about who owns what, for example, Viv contributed ½ of the purchase price and owns ½ of the value of the house.
If Viv’s interest is not defined, there could be a problem in actually defining their interest and therefore what belongs to their estate.
There are two competing interests in Viv’s estate, Les who lives there and Lee who (reasonably) wants to receive their share.
If Viv owns sufficient assets, there can be gifts in the Will so that Les receives Viv’s interest in the house and Lee receives savings. However, I can see problems in this because the cash assets at the time of making the Will aren’t the same as the cash assets at the time of death. Similarly, the value of the interest in the house also changes. But remember that Viv’s interest on their death will be low because of the occupation by Ash and Les and their children.
Viv could make a lifetime gift to Lee to reflect the purchase of the house, but this could only happen if Viv had a large estate and sufficient savings left to cover their living costs and potential care fees.
Another idea is that Viv can create a trust in their Will, to enable Ash and Les to continue living in the house until a fixed date and then ½ of Viv’s interest must be paid to Lee. At that time, the house would need to be sold or Ash and Les may be able to buy Lee’s interest on the basis of an agreed vacant possession valuation. A carefully worded Will Trust is required.
Goodness, this is fascinating and seemingly endless, definitely bespoke and personal to each and every family. I’m a great believer in families talking about what happens when I die. It’s not a great conversation and children often don’t want to hear it, but it’s important to avoid any misunderstandings and possible disputes after death.
In this article, I have tried to use gender neutral names and pronouns. This family model can often contain gender and age bias, which I have tried to avoid.