Ensuring the right people are inheriting
When deciding on who should inherit under your Will it is important to ensure they are correctly identified. There are different ways in which you can refer to people in your Will such as specifically naming them or including them in a class of persons. Either way it is important to ensure that however you refer to people in your Will that the correct people are benefiting in accordance with your wishes. Below are some examples to consider:
Second marriages and stepchildren
If, for example, you have a child and then marry someone other than the parent of that child, a common concern is what will happen when you pass away.
For example, Mr and Mrs Smith are married and Mrs Smith has a child from a previous relationship. When Mrs Smith passes away, she leaves her entire estate to Mr Smith however when Mr Smith passes away he may not make a suitable provision by way of a Will so that Mrs Smith’s child then inherits.
There are several options that could help Mrs Smith to ensure that whatever the circumstances her child receives inheritance from her estate.
She could leave her estate in percentages, for example 25% to her child, and 75% to her Husband with the belief that once her husband passes away he too will leave something to her child however as above this is not guaranteed to happen.
Another option is that she could leave her share in the family home on trust for her child. This option would allow her husband to continue living in and benefiting from the home however it ultimately is held on trust for her child. When her husband permanently vacates the property or passes away, her share of the home will be guaranteed to go to her child.
Step-children or fostered children
Whilst biological children or children you have legally adopted fall into the category of “my children” within your Will, step-children or fostered children do not. This means that if you had, for example, two biological children and one step-child and you left your estate to “my children equally” then it will only be split between those of your biological children. To include all children it is necessary to either name the individual children or to make it clear that those children who are step-children or fostered are to be included in the term ‘children’.
Nieces and nephews
When talking about members of your family it is common to refer to the nieces and nephews of your spouse as your nieces and nephews. However, when it comes to identifying people within a Will it works a bit differently to that.
The general rule is that unless there are mitigating contexts or circumstances, the courts will consider a gift to “my nieces and nephews” will refer to the children of your biological siblings. This means that nieces and nephews through marriage may accidently be excluded from a gift that was intended for them, however there are still options in which to include them.
You can either name the intended beneficiaries for example “I give one hundred pounds to Sam Smith absolutely”
If there are too many to name, or you want to leave provisions for future children who fit into this class you can identify them as “my wife’s/ husband’s nieces and nephews” this means that any children who are born to a sibling of your spouse will then be included.
If a class of people you wish to inherit from your estate is named as “my daughters” as at the time of writing it you had three daughters and no sons then this means that your estate will pass to your daughters. The problem that then may arise is if one of these daughters then legally identifies as a son. In the above example this means that your son now won’t inherit under this class.
One way of ensuring that your wishes are correct in regards to the correct people inheriting- if you think a change in gender is likely to occur- then you can say that “the gifts are to pass to those who meet the relevant description of the date of which the Will was made”.
In terms of beneficiaries who have been named, for example “I leave to Susan 20% of my estate” but at the time of your passing Susan identifies as Simon, as long as there is proof that Simon was once Susan then they should still be able to claim their inheritance.
If there has been any change in your circumstances since you made your last Will it is important to seek advice to ensure that your Will is following your wishes, that the correct people are inheriting and that no one has been accidently excluded from your Will. It is also recommended that you review your Will every five years or more to take into account changing circumstances and changes in the law.
If you would like to discuss your Will further please do not hesitate to contact a member of the Private Client Team on 01604 638 905.Back to Latest news
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