Wills For Married Persons with No Children
In preparing Wills for married couples who do not have any children a range of decisions and circumstances need to be taken into account. If these circumstances apply to you, please read this but, also please make sure you have also looked at our FAQs on Will drafting in general, as some common issues arise there.
Where the husband and wife have the same wishes
Where there are no children the normal provision is for a husband is to leave everything to his wife and vice versa. That is generally no problem. The decisions that normally have to be made, os what happens on the death of the last survivor. It can be the case that the husband and wife are in agreement between them on what will happen to the assets on the last survivor. In that case, two wills a prepared but they mirror each other to reflect their joint wishes.
Where the husband and wife have different wishes
It may not always be the case that a husband and wife wish their wills to mirror each other. It can be the case that decisions are made between spouses where assets will pass to other people depending on who is the last survivor.
We find that the normal discussion regarding these type of arrangements tend to revolve around issues of assets that might have been brought to the marriage originally or assets which are in reality or perceived to belonging to one spouse or another. So for example it may be the case that prior to marriage a wife was the owner of a farm which then was ultimately farmed by her husband or managed jointly as an enterprise during their lifetimes. On the death of a husband the surviving female spouse may not be inclined to leave the farm to relations of her husband and may wish to leave the farm back to her own relations. This type of decision making will be replicated across each spouse and their assets.
The Legal Right Share
It should be noted in a husband and wife situation where there are no children, a wife has an obligation to leave to her husband at least 50% of her assets (and vice versa). This is known as the legal right share. The parties to the marriage may decide to waive this requirement so that they agree between them the level of assets that are going to be left between them. So they may put in place an arrangement where less than 50% may be left between them. In those cases each of the parties should obtain independent legal advice. Further a waiver form is normally signed by each party confirming that they are happy not to receive their one-half entitlement or at least less than the one-half entitlement.
Tax elements
Tax advice becomes greater to the fore in these type of situations as the tax benefit of leaving assets to a child is not available. Each case must be looked at individually. There are a range of methods available to parties in these cases to minimise tax payments if that is what the parties wish. One of these methods is to spread out payments to a range of brothers/sisters and nieces and nephews. However, that is just one tool of many in these cases.
Conclusion
Parties to a marriage who have no children face difficult decisions in relation to their affairs. Careful step by step planning is need. However with the right advice solutions which benefit each spouse and their relations can be obtained in a tax efficient manner.
For more general information, please check out our <a href=”/faq/”>Frequently Asked Questions (FAQ)</a>. This will give you some further information which applies to all wills including this case.