Will / prenup / who to see?

[AdvanTax Group]

Hi all

Ok bit of a tricky one here, I need to be pointed in the right direction of who to see...

I am about to settle on a house with my current partner. My contribution will be almost $150,000 and his will be around $10,000. We both have kids to other partners and I want to protect myself in case we both pass away, or I pass away, or we split.

Basically I have worked my caboose off to get where I am and want to look out for my children in the future.

I believe if we seperate I would still receive most of my contribution back in any divorce / legal separation and its what I came into the relationship with, so not too worried about this issue.

MAIN ISSUE is that if I pass away, how do I ensure my children are left at least with what I contributed to the house? AND...

If we both pass away, how do I make sure that the house isnt sold and his former partner and their children receive money that I have worked hard for for my own children?

He is happy to sign any will / prenup / agreement as I have been firm on this since the start.

I just need to know who do I see? Lawyer? Wills person? Any ideas or recommendations? I am in Melb but happy to work via correspondence.

Thanks! Hopefully you are still awake...

Alysha

 

[Propertunity]

You need to see an accountant + a lawyer to set up wills & testamentry trusts.

 

[Peter_Tersteeg]

There's a few places where you can get a will done without seeing a solicitor, but given the pre-nup component, it's probably best you see a solicitor and roll it into one overall strategy.

There's also some financial planning stuff you can do that will completely bipass any will or probate, leaving no chance of being contested. It can work really well if you're thinking of setting up a savings account or education account for the kids.

I'm guessing you know a good solicitor or two, but PM me for a recommendation if you like.

 

[Player]

Get legal advice before settlement

You need to see an accountant + a lawyer to set up wills & testamentry trusts.

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What he said........also here's a question for you. How have you arranged to have the title particulars documented on this property? If you are joint tenants.......the other owner will take the asset.

If it isn't to late to give instructions to your solicitor, I would be setting it up as tenants in common with a percentage allocation to you and your partner. Perhaps this should reflect the equity/cash contribution you each made.....although that may not make for relationship enhancing conversation at this point.

See a solicitor post haste and get advice also from your accountant.

 

[AdvanTax Group]

Thanks guys, I am an accountant so no need to worry about that, but I will get onto the other professionals pronto and we are signing as tenants in common 50/50.

Ill PM you Peter.

Thanks all!

Alysha

 

[Meisterin]

Hi Alysha

As far as the house is concerned, if the house is bought 50/50 tenants in common, your portion will be passed on to your beneficiaries in your will.

But as others said, you would need to see a solicitor to see what kind of arrangement suits you best.

 

[JandJ]

1 = $150000, 1 = $10000
50/50 tenants in common ???

 

[Propertunity]

1 = $150000, 1 = $10000
50/50 tenants in common ???

You can have any % split you like down to 99/1

Those $ figures are just what they are contributing in their own funds initially, but ownership does not have to be split on that basis.

For instance, it may be that one is taking out a loan and the other is not. It may be that one will take care of all the maintenance and running costs and the other will not. They may want to share CG 50/50 or any other %. They'll have to work all that out themselves. Cheers.

 

[JandJ]

Absolutely agree, just commenting in the absence of any other info....but, as you say, there could be many other "things" to be taken into consideration.
Cheers

 

[Terryw]

I am a solicitor and doing a masters degree in Wills and estates. There is a whole lot to consider here.

For instance, did you know about the Family Provision sections of the Succession Act (similar, but not same in all states). Any eligible person left out of a will can make a claim if they are not adequately provided for. Eligible persons include children (but not step children), former spouses and any dependants (can even have multiple spouses at the same time now).

A way around this is to make sure certain assets are not left via will. This includes super, trusts and JT owned assets (passes to survivor). But, in some states, such as NSW, these other assets can be deemed to be part of the estate and the court can make a notional estate order so, for instance, a house owned via a trust could form part of your will.

So, with previous marriages and blended families you really do need to see a solitcitor who knows this area. Before I started my course I had no idea how complex wills and estates can be and neither do most of the solicitors out there.

 

[AdvanTax Group]

We signed 50/50 as down the track we plan to grow old together and then who contributed what wont be as important, plus in the future we plan to expand the family and he also plans to set up his own business in the future and contribute a lot more money to the household than me. But... its the short term future that I am thinking about. We will reassess this say 5 years down the track after x years of marriage. I am probably not making a great deal of sense, I know what I mean in my head - I just have to portray that to another person to put on paper!

Alysha

 

[AdvanTax Group]

Another option I thought of was perhaps having something in his will to state that he owes me x dollars for the purchase of the house and if something happens to him/us his estate needs to pay me/my estate before anything else. Maybe that will work?

Alysha

 

[juliezzz]

Dear me

Clause in "his" will. Clearly you have not had a marriage break up or property settlement before. Apologies for cynicism. Guess we all learn by experience. Sounds like an accident waiting to happen. Stitch it up for your kids right now. If he has a problem, you have to wonder why. Vice versa. Tho I guess if you are in your 20's you have time to start all over again with nothing in several years.

 

[MIW]

He can change his will without your knowledge.

Another option I thought of was perhaps having something in his will to state that he owes me x dollars for the purchase of the house and if something happens to him/us his estate needs to pay me/my estate before anything else. Maybe that will work?

Alysha

He can change his will anytime without you knowing it so I don't think that's an option. See a good estate planning lawyer.
Also just a thought, please don't take it literally. Say you just settled on the house, a month has passed, and unfortunatelly you had a car accident and you passed away (please bear with me). Your tenants in common 50%/50% permits your 50% to your children with $80,000 only ($150k yours + $10K his = $160k total) as per your will (if you have one), or vice versa, his children with the same amount if something happened to him? I suppose the issue is the time in this case.... if you are happy about it.
Another scenario. What if you were in a coma (not passed away?) who would make decisions there, about your wellbeing, your children, or financial matters as the will cannot be instigated?
A Will and 'Powers of Attorney' (for financial matters) and 'Enduring Guardianship' (for personal care matters) should be thought in your situations (this is just my opinion since you may have dependant children at this stage). Just a thought, I hope I have not confused you more, but when dependants are present on both sides and assets exist a good family/estate/asset protection lawyer is warranted.

 

[Terryw]

Another option I thought of was perhaps having something in his will to state that he owes me x dollars for the purchase of the house and if something happens to him/us his estate needs to pay me/my estate before anything else. Maybe that will work?

Alysha

After death he can just say he didn't owe you the money and dispute it. And as MIW say he could change his will.

If he really did owe you money then you could draw up some loan agreements, but outside the will.

 

[RPI]

I agree with Terry. Wills and estates is a specialist area. Diff Jurisdictions are different too see a wills/estate specialist.

I am a solicitor and doing a masters degree in Wills and estates. There is a whole lot to consider here.

For instance, did you know about the Family Provision sections of the Succession Act (similar, but not same in all states). Any eligible person left out of a will can make a claim if they are not adequately provided for. Eligible persons include children (but not step children), former spouses and any dependants (can even have multiple spouses at the same time now).

A way around this is to make sure certain assets are not left via will. This includes super, trusts and JT owned assets (passes to survivor). But, in some states, such as NSW, these other assets can be deemed to be part of the estate and the court can make a notional estate order so, for instance, a house owned via a trust could form part of your will.

So, with previous marriages and blended families you really do need to see a solitcitor who knows this area. Before I started my course I had no idea how complex wills and estates can be and neither do most of the solicitors out there.