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Many families include children from previous marriages. Testators from such families often want to ensure that both their children and stepchildren are treated fairly, no matter what happens.
The problem is that English law has no concept of a joint will. Instead, a Will is only ever made by one individual who can (usually) change it whenever they like.
Unlike biological children, stepchildren do not automatically inherit from a step parent who dies without a will. If you die intestate, your estate may pass to distant relatives, leaving your stepchildren with nothing.
Stepchildren can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This Act allows certain individuals, including stepchildren, to make a claim against an estate if they believe they have not been adequately provided for in the will or on intestacy.
To make a successful claim, a stepchild must demonstrate that they were treated as a child of the family and that the provision made for them in the will is inadequate.
It is not always a good idea just to have a simple Will leaving everything to the surviving spouse failing which to children. This is particularly important where there are children from previous marriages and the aim is to treat all the children equally.
The starting point is an open discussion. If you and your new spouse agree, the options are :-
Mirror wills - the risk with mirror wills is that either party can change their will at any time.
Mutual wills - wills which include express agreement between two people making their wills (the parents in this case) that they will not change their Wills without consent from the other. The will can still be changed but the agreement to the terms of the mutual will does constitute a contractual agreement which means a breach of contract claim can be made.
Setting up a lifetime trust - trust allows the surviving spouse to benefit from assets, such as property, while preserving the capital for the children. For instance, the surviving spouse can continue living in the family home, but the underlying ownership is protected for the children.
Adoption - If a step parent legally adopts a stepchild, they will then have the same inheritance rights as a biological child.
At Taylor Rose we have a thriving department that specialises in wills and estates. Our team of experts recognise the issues that can arise in blended families where the aim is to treat everyone equally and we can advise you on the various ways to achieve this.
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