Blended Families And Will Considerations: Avoid These Common Traps
When writing your will there are factors to keep in mind to ensure everything runs as smoothly as possible, to ensure your final wishes can be fulfilled. As the makeup of families in Australia is evolving, wills and estates are becoming increasingly complicated. This is because there are more blended families that exist now than ever before.
Protecting your children’s inheritances from previous marriages is a key aspect to cover in your will if you remarry or partner with someone new. This is a common area where issues arise are not immediately apparent until after someone passes away.
To ensure you have the peace of mind in knowing your will is set up the right way for your blended family, this article explores some of the common traps we see as experienced wills and estates lawyers.
How It Can All Go Wrong
We have all likely heard a story of a friend who has had a parent pass away and the complications of step or half siblings has resulted in issues when it comes time to finalise someone’s last wishes. For example, let’s think of the Brady Bunch as an example. You have three kids on one side of the family and three kids on the other. Both families have come together and the parents look to re-write their wills because they have remarried.
What is common to do in these circumstances is to give everything to their spouse. Then, often, if their spouse predeceases them, they want everything to be equally divided between the kids. So, let’s say that what happens is that Mr Brady passes away and he has given everything to Mrs Brady.
Mrs Brady then decides she does not want to continue the relationship with Mr Brady’s kids for whatever reason and changes her will. Leaving everything to her kids and leaving Mr Brady’s kids without.
The only way to resolve this type of circumstance is for the children on Mr Brady’s side to bring a claim at that point in time against her for provision on the estate. But if Mr Brady’s children are, for example, ages four, five and six, they are not going to know they need to do that. Nor may anyone else be thinking about it on their behalf.
So, it can result in the unfortunate situation of them running out of time. This is because the timeline to make a claim is six months from the person passing away. You need to provide notice that you are going to do a claim within six months of their passing and then you have to bring about a claim within nine months.
As you can see from this example, it’s something that would not be too far-fetched to imagine occurring. Particularly when young children are involved. So how can you best prepare your blended family for your wishes to be fulfilled? We take a look at some of the common traps to avoid.
Common Traps To Avoid
The first and foremost point to make is the fact it is too easy for children from either side of a first marriage to lose out where blended families and wills are concerned. This is because if people in their second marriage just use a standard will then inevitably one side of the family will be affected, as a simplified will is not suitable for a blended family situation. Therefore it is inevitable issues will arise because that is how standard wills are drafted. So the first point to make is that you need to have your will drafted by an estate lawyer who is experienced in ensuring all circumstances can be covered.
While it might cost more for a customised will to be developed to cover all these bases, it will pay off in the long run. This is because when there is an inevitable dispute and a claim is made on the estate, your legacy can easily end up being eaten up by the considerable legal fees incurred. Instead of the estate being administered in a timely fashion of around six to nine months from the date of death, it will likely be four or five years before the estate becomes administered due to the legal aspects that arise.
So, by having a will that is too simplified, it can cause a significant delay in the finalisation of your affairs. Not just delaying it a few months, but years.
If, for example, money has been set aside for kids to get through school or if there are health issues in the family, the funds will be tied up and those wishes may not be able to be realised. Unless you’ve got some sort of interim orders, which are extremely expensive, everything comes to a halt if an estate is in dispute.
By not having a suitable will for a blended family, it is common to see an increased division among the family. Because as soon as litigation commences you will see a falling out between the families. Especially because it is at a time when people are extremely emotionally vulnerable and not thinking clearly. All of this results in considerable hurt for all parties involved.
Working with a lawyer who is experienced in preparing a will specifically for the circumstances that arise in blended families, is critical as the outcomes are often truly diabolical.
Estate Planning For Blended Families – What To Do Instead
If you have a blended family, you should not go anywhere near a will kit or simplified will. Because in doing so, you will likely be signing up to the worst-case scenario for your family.
What is essential is to have your estate documents drafted so that when you pass away, you have set everything up to make sure that both groups of children are provided for. When you have made a determination in the will those provisions are locked in and a surviving spouse cannot change their mind about who will be provided for after your passing. Having these documents drafted up correctly also reduces the likelihood there being a significant delay in the finalisation of your estate and your wishes being realised in a reasonable timeframe.
Maylene Mole is the Principal Solicitor of Nextgen.Law and specialises in wills and estate planning to effectively accommodate blended families. The Nextgen.Law team helps parents and their children as they navigate the process and ensure that their wishes can be upheld in their twilight years and upon their passing.