How do wills work?
December 28, 2011 3:35 PM   Subscribe

What is the standard way that divorced parents with new partners (who also have children) organise their wills?

My mother is in a long-term relationship (20+ years) with, but not married to, a man who has a daughter. Together they own a house.

My girlfriend's father is also in a long-term relationship with a woman with several children, and the couple live in a house that they own together.

I imagine this setup is quite common nowadays.

How do people in such situations organise their wills? I know little about this side of life, but I'd imagine that married couples who only have children with each other would generally have wills leaving everything to the other half. Only when the second parent died would the children, by default, come into it.

I honestly think that if my mother were to die and her partner lived on for another 20 years or so, I wouldn't have much communication with him. He's a decent guy, but we don't have much to say to each other as it is. That being the case, would I get a call after those 20 years, when he did die, to tell me I had a share in a house? That would seem weird, but then again the opposite would seem weird.

NOTE: my mother is not likely to die any time soon, and if she did I'm not that bothered about owning a share in her house. I am not in dispute with anyone about this, and I don't anticipate being so. I am asking out of idle curiosity.

NOTE 2: I'm in the UK, if that matters in legal terms. But, again, note that I'm looking for pretty general answers based on standard practice. I'm not really excited about claiming any inheritance or anything, and based on lifestyle I'd be surprised if I outlived my mother. I'm just sort of curious about how these things work.
posted by cincinnatus c to Law & Government (5 answers total)
I have no idea how my sets of parents have done this (everyone, conveniently enough, got married and divorced,) but you might find my state's statute of descent and distribution chart instructive, in the sense of "at least one US state's legislature thought this is how most people would be OK with it being." Note that in the event there is a spouse and children only from outside that marriage, the spouse gets the first $20,000 and then the rest is divided with all the children collectively getting 2/3rds and the spouse getting the other 1/3rd. Without a marriage, and without a will, the children get everything (but their children have claim, in the event those children have died.)

Fascinating stuff, really.
posted by SMPA at 4:30 PM on December 28, 2011

I applaud you for having good foresight!

There are wills and there are also trusts.

I'm unsure of how the UK flows, but in the US: a will is only a general wish to the executor of estate. Probate courts handle estates above a certain asset value. A will can be submitted to provide guidance to execute distribution, or to tell the court you have a living trust.

Anyone with a strong wish to control how the estate is distributed should consider the trust route for maximum control. Preparing either/both can cost a few thousand dollars.

I'm not a lawyer, but my family discussed trusts over Xmas dessert! :)
posted by Bodrik at 4:40 PM on December 28, 2011

I think there are too many elements for there to be a "standard" pattern. It depends on the laws in effect where you live, who owns the property, and how people feel about one another. In many but not all jurisdictions, married couples own their things (or many of them) as joint tenants, so when one dies, the survivor simply becomes a sole tenant. No will has to be invoked. Where spouses retain individual property, some will leave it all to their spouse, others will divide it up with their children, and still others will set up some kind of trust to distribute assets as they decide during their lifetime.

On the other hand, I have a friend in France whose husband died about 15 years ago. She only owns 50% of her condo; her three children own the other 50%. They can't sell it unless everyone agrees. But she keeps the use of the property as long as she wants, or until she dies, at which point her three children inherit her share. They, in turn, can pass on their shares to their heirs, which is how you end up with situations where someone owns some tiny percentage of a family property which is a burden on everyone because one objection can prevent it from being sold. It's the stuff of novels.
posted by brianogilvie at 5:10 PM on December 28, 2011 [1 favorite]

One logical option (not that there is necessarily anything logical about wills) is that the estate is split between the spouse and the children (1/3 to the spouse is often a traditional option). Usually the executor decides which assets go into whose share, if the estate is large enough, the deceased 50% becomes part of the assets inherited by the spouse while the kids get more liquid assets.

By the way, i was the child in my family that bluntly asked my father when he remarried what he was going to do about his will. Like you, I was going to readily accept what he chose but I was curious. His answer: 1/3 to her, 2/3 split among his kids.
posted by metahawk at 10:17 PM on December 28, 2011

Data point- my dad set it up so that if he dies before his gf, she gets to live in his house as long as she wants but the ownership of the house is split between me and my sister and we can't do anything with it until she dies or moves out. I imagine it would be harder if they had bought the house together.
posted by rmless at 10:11 AM on January 4, 2012

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