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Published: 22 January 2019
Author: Amanda Burns
The laws of survivorship may well override your intentions when it comes to who will inherit one of your most important assets - your family home.
In most cases, there isn’t a problem. But because jointly owned assets automatically pass to the survivor, what happens if both of you die?
In this blog, I explain how to avoid the unintended consequences that are sometimes encountered by this kind of circumstance.
It is important for couples to have frank and explicit conversations about how each partner wishes to have their estate distributed and administered.
Think about the scenario that you and your partner are involved in an accident. Your partner outlives you by a day. Your partner then becomes the sole owner of your family home and it is your partner's Will, not yours, that determines who inherits the entire house.
If you and your partner do not have mirror Wills, or any Wills at all, then it could be your partner's side of the family, not yours, who would inherit.
If you and your partner both die and it cannot be determined who died first, then the older of the two of you is presumed to have died first. This would mean that the family home would go to the younger person's side of the family.
If you have jointly owned assets it is critical that you and your partner have "mirror Wills" that cater for the event that you are both involved in an accident, setting out who is to inherit your jointly owned assets if you both die.
A common example of mirror Wills for a couple with children would be to appoint each other as sole executor and sole beneficiary in the first instance. This makes sense where the family home would pass to the survivor in any event and where the surviving parent needs to have full access to all finances to care for and raise the children.
The next step, thinking about the scenario that you both die, would be to leave everything to your children in equal shares. If there are no children, or in the tragic event of the children also dying, you might stipulate that your combined estates are to be divided 50:50 to each side of the family.
If the terms of the Wills mirror each other in this fashion it does not matter who dies first because the beneficiaries under both Wills are the same. That is, the jointly owned family home is to be divided 50:50 to each side of the family, regardless of which estate it ends up in under the laws of survivorship.
By making mirror Wills with your partner you are also avoiding the potential problem of each of you appointing a different person to look after your children's trust fund.
This is something you and your partner need to reach an agreement on. In having these discussions with your partner you can address any differences in opinion on who should look after the children and any issues surrounding children from previous relationships. It is possible you may also wish to provide for another important family member, for example, an elderly parent who lives with you.
If you approach the Will making process as a joint venture with your partner you will ensure that in the unlikely, but possible, event that you are both killed in an accident, your joint wishes are reflected in your mirror Wills and this will help protect the interests of those most loved by you.
If you’re interested in some of the other complexities of non-standard Wills, see my blog "Will my Will cover all of my assets?”.
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