What to consider when making a will as a blended family
When a parent of a blended family creates their will, additional considerations may arise due to a more complex family structure along with discussions about tax and pension consequences. Here we share what to consider when making a will as a blended family, so you can help your clients have their assets divided in the way they wish, to the people they wish.
Why is creating a will as a blended family more complex?
Even if not immediately apparent, the potential for future conflict between surviving spouses and their biological and step-children may emerge. Fortunately, there are many ways to ensure that the deceased’s wishes are honoured, even if other family members want to use the estate’s assets in other ways.
Issues may arise in attempting to impose a ‘traditional’ will (in which the entire estate is left to the surviving spouse) on blended families. Often there are additional beneficiaries such as step-children from prior or future relationships to consider.
For example, a surviving spouse who has inherited the entirety of their deceased partner’s estate could disregard their wishes to provide for all the children in the family unit equally. Instead, they may only pass on the assets to the surviving spouse’s biological children.
Step-children are also able to make a claim on the estate of their step-parent, even if their biological parent (the spouse of the step-parent) is deceased.
How can I ensure my assets are divided how I wish?
To reduce the likelihood of issues arising and have assets divided in the way they wish, blended families should consider structures such as trusts, mutual wills and binding family agreements. We share more about each of these structures below.
Discretionary testamentary trusts
Discretionary testamentary trusts can be used to ensure that the assets of the estate are divided in the way the will-maker intended. Often, a life interest in the estate is given to the surviving spouse. On that surviving spouse’s death, the remainder of the estate passes to the children. A person can create more than one testamentary trust if they wish to govern the use and benefit of specific investments or assets separately from one another.
A mutual will requires any changes to be made by both parties in writing. This eliminates the possibility for the surviving spouse to change the beneficiaries of the estate or the proportion in which they are given assets. A fundamental advantage of using a mutual will is that if the surviving spouse remarries, the obligations under the agreement remain valid even if the will itself is terminated.
Binding financial agreements
Even in situations where there is no blended family, steps can be taken to ensure a specific division of assets in the event of a breakdown in a relationship. Binding family agreements can be made before, during or after a relationship breakdown, and should mirror the will of each spouse.
Binding or non-binding nomination forms
Other ways to ensure that specific beneficiaries receive money from the estate include the use of binding or non-binding nomination forms for superannuation, life insurance policies and insurance bonds. Binding or non-binding nomination forms allow you to nominate a specific beneficiary or group of beneficiaries. If naming a group of beneficiaries, attention should be paid to the specificity and naming of the group to ensure that the provision of assets does not fail for want of certainty.
Additional factors to consider when making a will as a blended family include what happens in situations when assets are held separately, distribution of family heirlooms and child support obligations.
Assets held separately
Some parents of blended families may prefer to hold assets such as bank accounts and houses in separate, rather than joint names. If a property is held between spouses as joint tenants (rather than being held separately in a fixed proportion), a right of survivorship operates. This means that on the death of one of the spouses, the property automatically passes to the surviving joint tenant. This can occur despite any provisions made in the deceased’s will.
Distribution of family heirlooms
Another point to consider when making a will as a blended family is how specific assets like family heirlooms will be distributed. These assets should be individually mentioned in the will in order to avoid conflicts between potential beneficiaries.
Child support obligations
Parents in blended families should also be mindful of other financial obligations they may owe to children and partners of previous relationships under child support or spousal maintenance orders.
Take action to ensure your assets are divided according to your wishes
The increasing prevalence of blended families in Australia has resulted in the drafting of wills becoming more complex. Additional things to consider when making a will as a blended family, such as the potential for family disagreements, the wishes of the surviving spouse and other financial obligations, need to be taken into account. Nevertheless, effective legal mechanisms exist to support the deceased’s will and ensure that their assets are divided according to their wishes.
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