A large number of probate disputes arise in cases where there the deceased is married but has children from an earlier marriage or relationship.
Disputes over estates can easily be avoided by setting up a will with a life interest trust.
In second marriages, most people will want to ensure that after they die their spouse is financially secure, but they will also want to leave an inheritance to their children from an earlier marriage or relationship.
If they leave their estate outright to their spouse, there is a risk that after the first spouse has died, the surviving spouse may remarry or simply decide to make a new will leaving the joint estate to their own family or to charity.
Most probate practitioners have seen countless examples of this kind of scenario. If the first spouse has died a long time ago, the surviving spouse may have lost contact with their step children. Or they may never have had a meaningful relationship with the step children in the first place.
A life interest trust means that the surviving spouse has a right to occupy the family home for the rest of their life. This is sometimes limited so that the right comes to an end if the surviving spouse remarries or cohabits. The surviving spouse is also entitled to the income from savings and investments.
The surviving spouse does not inherit assets directly. The family home and cash assets are transferred into the names of the trustees. On the death of the surviving spouse, the family home and savings pass to the children from the first marriage.
It is quite common for the parties in a second marriage to feel torn between their wish to look after both their spouse and their children from an earlier marriage. This can be particularly fraught where one spouse has children and the other does not.
Sometimes this tension can mean that a couple do not make wills at all, as they cannot see how both spouse and children can be properly provided for.
Making wills with a life interest trust ensures that after you die both your spouse and children from a previous marriage are looked after.