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Making A Will On A Second Marriage - Right Of Residency

View profile for Joanne Tillotson
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Today’s society is very different to a generation or so ago and many of us have children from previous  marriages and relationships.  Have you considered how you will provide for your children when you die but also ensure that your new partner is secure and provided for, too?

One of the key questions from clients who have children from a previous relationship is:  

How do I protect my estate for my children?”  

This is particularly important when there is a jointly owned home.

Without seeking proper legal advice you may choose to make a straight forward Will selecting your new partner as sole beneficiary and making provision for your children once your partner has died. Did you know though that this runs the risk of your children not inheriting your estate?

For example, if you die first and your estate passes to your new partner these assets become theirs in their own right, including the jointly owned property. These assets can then be spent or sold. Furthermore, your new partner is free to change his or her own Will at any time.  So, even if you make joint mirror Wills together making provision for your children, this could be amended following your death.  Your partner could, after your death, review this Will, amend it or completely change it. Perhaps, disinheriting your children?

Food for thought isn’t it?

One option to ensure protection is to change the way in which you own your jointly owned property. The majority of couples own their property as joint tenants.  This means that the property automatically passes to the surviving party on death. However, you can change this by severing the joint tenancy and thereby hold it as ‘tenants in common’.  When you severe a joint tenancy, each individual owns their share and it does not automatically pass by survivorship. Severance is relatively straight forward by submitting an application to the land registry (provided it’s registered land).   

A Will can then be carefully drafted leaving your half share of the property directly to your children but granting a right for your partner have the use of your half share for life. This is sometimes referred to as a ‘right of residency’. This method will protect your half of the property for your children, whilst still providing for your partner to live in the property for life.

This is only one of the options available when considering how to best protect your assets for your loved ones, whether due to a second relationship or for any other reason. It might sound complicated but arranging this for you is relatively straightforward for a legal practitioner who is used to dealing with such nuances. We would be happy to assist you with any queries you may have. 

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