Getting married in later life - assets

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Gordanus

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If an older couple, still working but within 10 years of retirement, get married, can they each protect their assets and their children? The only child of one partner is under 18, the other (of the other partner) is over 18. Each partner owns their own home, but there are still mortgages outstanding.

They want to get married and live together, which will entail buying a new home. Both had previously left each property to their respective children.

I was saying that they could probably each sell their house, use some of the money to buy another, and maybe set up a trust fund for the kids? Or can they make separate wills, leaving the surviving partner the house for their lifetime, and split the money between the offspring? The existing houses are wildly different in value - one is worth €400k, the other 100k, but the costlier one has a much bigger mortgage outstanding. The lesser has less mortgage left but is worth less than was bought for.

Any suggestions for them to think about before approaching a solicitor?

Thanks for any suggestions. They are reluctant to get married without having all this sorted out beforehand, and have no idea how to go about it.
 
I presume you mean to say in the current wills the assets are left to the children. Those wills are invalid when you marry. You both need to therefore make new wills. You cannot do a pre nup, but you can draw up a document with your solicitor. Do not forget that you cannot disinherit a spouse. So at a minimum a 1/3 share if I remember correctly.

Why sell both houses? Is either house suitable for you both. What do you both want. You want no matter what that either of you are housed in the event that one of you dies. That should be a priority. There is one minor child, that needs to be taken care of.

You can and must both make your own wills, separately. You do not need to discuss the contents with each other, or one can discuss and do precisely the opposite in the will, spouses have no rights to know what's in another's will. (saying this with a copy both my will and my OH's in a safe box!)

Oddly you speak of trust funds, with one asset of 100K, another worth 400K but with a mortgage, and the two of you needing a house. I'm not seeing millions, never mind thousands to go about a trust. What is it both of you want protected, that what you each bring to the marriage goes to the children.

I know an eldererly aunt of my OH got married, both sold their houses, moved in together and couldn't stand each other, pretty soon and she regretted selling her house - just a sad tale to make you think.

There is nothign wrong with you both sitting down and deciding what to do, that's good planning, but also plan to be happy together and don't let children put any pressure on about 'their' inheritence, it is not their inheritence but your hard earned savings.
 
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While a pre-nup has no legal validity in Ireland, it's probably a good idea for them to put something in writing so that they agree between themselves what will happen in the case of splitting up.

I think that they should focus on each other and not focus on the children.

The first priority is to clear the mortgage. They are in their mid 50s and they both have mortgages. They should clear the mortgages before thinking of anything else. The trust fund makes no sense.

After that, they have to agree how to manage their savings and other assets. Presumably, they will keep them separate. So if he wants to give money to his child, he can do so from his own pot.

The most likely issue to create a problem is what happens if they split up. This is what they should be focusing on. They can agree that neither will make a claim for maintenance on the other. They should agree now on what is to be done with the house e.g. One may have the option to buy the other out. The valuation to be decided by a valuer appointed now.

If he dies, she should get the house without any restrictions. Giving her a lifetime interest is messy. She may want to sell the house and move to a different location. After he dies, he should be able to leave his separate savings to his child, if that is what he wants to do. I don't see why a married couple would not leave their assets to each other, but that is a choice for them.

When they have cleared the mortgage and built up other assets such as savings, they may agree that these assets would be left to their own children in the case of death. But the surviving partner should always get the house free on any restrictions.

Brendan
 
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I call it "having the conversation".

It would be helpful if they each understood their legal obligations to each other before they adopted a position. Married people must leave not less than 1/3 of their estate to their spouse. If they don't do that, their will is open to challenge.

If they hold assets jointly, on the death of one, those assets pass by survivorship i.e. automatically and do not form a part of their estate. The survivor is still entitled to their 1/3 of what is left.

Interestingly, children have no automatic right to inherit anything although they can make a claim on their parent's estate if they feel hard done by.

We don't currently have such a thing as a "mutual will" i.e. where people make reflecting wills and it is quite clear what the end result will be. And no-one can change it without notifying the other. So, there is always a chance that one will outwit the other.

This does happen - I have had a number of situations where one person has run rings around the other - usually the besotted being outwitted by the besottee!

mf
 
BB you should have put a smilie at the end of that comment.

MF1 there is a nice warning there in your post, right at the end, hope the OP gets it. Particularly the words 'number of situations'
 
mf1 said:
We don't currently have such a thing as a "mutual will"
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Isnt there such a thing as a joint will? So both parties see exactly what will happen. Is it true that the surviving spouse cant alter the will after the death of the first spouse though? that could raise unforeseen difficulties.
 
No there is no such thing as a joint will. Your own will you can do whatever you want with at any time. So of course you can change your will after your spouse dies. You are not entitled to know what is in your spouses will. And if your spouse forces you into making a will, just do another one with a different solicitor.
 
@Bronte - thanks for that, as it is possible to draw up a will yourself, does that mean it is invalid if married spouses have only one will?
 
I consider it foolish to draw up one's own will. Go to your credit union, they normally have a deal with a local solicitor, or go to your family solicitor, a will is one of the cheapest and wisest decisions you will ever make. No of course it's not invalid if only one person in a marriage makes a will, it just means the other person dies without a will, called intestacy.

Something is clearly bothering you, in relation to a will. One thing not unheard of in Ireland is where one partner has a child that nobody knows about, and they want to make provision for that, solicitors have heard it all before, things like that or any other concerns you have, take it to a solicitor. If it's a BIG secret, go to a solicitor in a large town where you are not known.
 
Thanks Bronte - no big secret (i hope) - it's my parents will, not mine, that concerns me. It's taken me years to convince them to write a will - they'll be long gone before i'll get them in front of a solicitor!

and by "married spouses have only one will" i really do mean, they wrote one together and both signed it - and are happy now because they've agreed everything. If it's invalid I will do my utmost to get them to write one each, even if its word for word the same, with different names <sigh>

Sorry for dragging the thread off-topic!
 
stephnyc said:
Thanks Bronte - no big secret (i hope) - it's my parents will, not mine, that concerns me. It's taken me years to convince them to write a will - they'll be long gone before i'll get them in front of a solicitor
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They really need to sort this out sooner rather than later. None of us like to be morbid but writing a will is purely a practical necessity especially when you are married and have children. It can resolve many difficulties that could arise when the inevitable happens. Look up the intestacy rules and explain to them what would happen to their assets in the event that they died intestate.
 
stephnyc said:
Thanks Bronte - no big secret (i hope) - it's my parents will, not mine, that concerns me. It's taken me years to convince them to write a will - they'll be long gone before i'll get them in front of a solicitor!

and by "married spouses have only one will" i really do mean, they wrote one together and both signed it - and are happy now because they've agreed everything. If it's invalid I will do my utmost to get them to write one each, even if its word for word the same, with different names <sigh>

Sorry for dragging the thread off-topic!
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You know - sometimes it is not the end of the world if people don't make proper wills.

One of my clients said the best thing that could happen was that his widowed mother would die intestate- because her will, if she ever gets around to doing it, would be so riddled with inconsistencies, leaving people out and generally trying to rule from the grave, that it would very likely be contested.

I'm fascinated by stephnyc's post. I love the idea that the parents made up their own rules and decided not to worry themselves with mad details like the provisions of the Succession Act!

And if the end result is that no one falls out after the death of one parent and leaves everything well enough alone, well so what?

The downside, obviously?

Assets not in joint parents name pass 50/50 to spouse and offspring. All sorts of problems when one of the grubby offspring wants what's theirs. And Fair Deal? LPT?

The list goes on.

If people want to leave their affairs in order when they die, they should make a will or understand the consequences of not making a will.

mf
 
stephnyc said:
Thanks Bronte - no big secret (i hope) - it's my parents will, not mine, that concerns me. It's taken me years to convince them to write a will - they'll be long gone before i'll get them in front of a solicitor!
!
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Phew, but sad too, thought it might be an exciting revelation to get us all going on a slow Friday ! What did they put in their will? Which of course you shouldn't know?

MF1, the fact my grandmother was persuaded by my aunt to 'forgive' my uncle a small debt in the will ! and left him nothing rankles to this day. Like 30 years later.
 
I wish it was a more fascinating story now! :)

I take it the will is invalid, just by virtue of it being a "joint will"? Similar to your client @mf1, maybe being intestate and following the Succession Act will be good enough when the time comes
 
Maybe trust fund was the wrong expression to use. I was thinking of the trusts people used set up for when children went to university.

No, they've worked out finances - a joint account for household expenses/joint savings for holidays of equal amounts as they earn much the same as each other.

Neither is in a position to clear either of the mortgages, but the sale of each house would clear it, and leave enough over to buy a house of their own. Neither wants to live in the other's house, and both would prefer a house they can both agree on. Could they divide ownership of the new house according to the amount each puts in? She'll be putting in significantly more. Can this be done when a couple is married, or only if co-habitees?

I suppose, having lived full lives before this, each had thought they'd have a house to leave to their own child. So the law being that the surviving spouse inherit 1/3 of the assets, and I thought any minor children are entitled to another 1/3, so that the adult child might be left without anything? Their major question is about leaving something substantial to each child.

Thanks for all the helpful posts so far - hard to google any information - and I suppose they should go consult a solicitor at some point.


44brendan - what's a PDH?
 
This situation can be very divisive if not handled properly. As both have property which they wish to leave to their individual children they should enter in to a legally binding agreement which spells out the manner in which their estate should be handled in event of death. Each person should have their own solicitor. An informal agreement between each party is not legally binding
 
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