Can Anyone Explain In Plain English What This Means Please

[kaputchnik]

Here's a section from a will template but it may as well be in Swahili to me. Does it basically say that my half of the property is left to the trustees and NOT my wife?

Thanks

I GIVE the following legacy:

(i) I give to my Trustees upon trust freed and discharged from all sums secured thereon by way of
mortgage or otherwise at my death (and I direct that such sums and all interest in respect thereof
and costs and expenses relating to the discharge thereof shall be paid out of my Residuary
Estate) my interest (if any) in the property known as (insert address here) together with the furniture carpets curtains and other articles of household use or
ornament not otherwise specifically gifted by this my Will or any Codicil thereto ('the property')
to retain or sell it and to invest any net proceeds of sale in investments which my Will allows
and to pay such income or the net rents and profits of my interest (if any) in the property to my
wife (Insert name here) ('my wife') subject to the following conditions:

(a) so long as the property remains unsold my Trustees shall allow my wife to live there
subject to keeping the buildings adequately and comprehensively insured keeping the
property in reasonable repair and decorative condition and paying all outgoings but so that
my Trustees shall not be under any liability if these conditions have not been complied with

(b) I give my Trustees power to pay out of any proceeds of sale of my interest (if any) in the
property or any substituted property (purchased as a result of this sub-clause) to purchase a
freehold or leasehold property which will be held for the benefit of my wife but if leasehold
having not less than 75 years unexpired and shall hold the same upon the trusts contained in
this clause

(c) my Trustees shall not effect a sale of my interest (if any) in the property without the
written consent of my wife

(d) after the death of my wife or if my wife shall fail to survive me by 30 days or if my wife
shall go to live in a Care Home my interest (if any) in the said property (insert address here) (or other property purchased from the proceeds of sale
thereof) together with the such of the said carpets curtains and other articles of household
use or ornament or its net proceeds of sale or the investments arising from it shall be held
upon Trust absolutely for (Insert name here) and (insert name here)


4. I DECLARE THAT if any share of any legacy in the above paragraph 3 of this my Will shall fail
then from the date of such failure such share or shares shall accrue and be added to the share or shares
in that legacy (if more than one in the proportion which such other shares bear to one another) which
shall not have failed at the date of my death and be held subject to the same provisions and conditions
as those affecting such other share or shares AND I FURTHER DECLARE THAT if any legacy in
the above paragraph 3 of this my Will shall fail entirely or be declared void then it shall fall into and
form a part of my Residuary Estate

[2222]

"I give to my Trustees upon trust" does not mean the property is literally a gift to the trustees.

The above says the executors/trustees are to pay any mortgage out of your residual estate, then hold the property in trust. The trust terms are:
1) the property can be sold and the proceeds invested. If so, your wife gets the income for her life until she goes into a care home, or
2) the property is retained and let out. Your wife gets the net income for life until she goes into a care home, or
3) the property is retained, and your wife can live there rent-free, subject to paying certain expenses, until she goes into a care home.

After that the property (or the investments, if the property was sold) goes to whomever you name in d) of the draft.

[kaputchnik]

"I give to my Trustees upon trust" does not mean the property is literally a gift to the trustees.

The above says the executors/trustees are to pay any mortgage out of your residual estate, then hold the property in trust. The trust terms are:
1) the property can be sold and the proceeds invested. If so, your wife gets the income for her life until she goes into a care home, or
2) the property is retained and let out. Your wife gets the net income for life until she goes into a care home, or
3) the property is retained, and your wife can live there rent-free, subject to paying certain expenses, until she goes into a care home.

After that the property (or the investments, if the property was sold) goes to whomever you name in d) of the draft.

Many thanks for that reply, it's made it much clearer to understand.

I am trying to make sure that my half of the property should i die first is passed on to my 2 children (my wife and i are tenants in common) but that she can remain living in the property until such time as either she dies or has to enter a care home (sincerely hope not), protecting at least my half of the property for my children to inherit.

[2222]

Are you going to do your own will, or go to a solicitor?

[kaputchnik]

Are you going to do your own will, or go to a solicitor?

My wife and i would like to do it ourselves if possible as the only part we wish to change from our existing wills is the the "leaving our half of the property to our children part" as we have changed our ownership to tenants in common to hopefully protect at least some of the property for them.

[2222]

My concern is that you might muck it up if you don't understand the wording. Can you find a cheap lawyer? Or one of the schemes run by charities?

sorting out a problem will is eye wateringly expensive.

[kaputchnik]

My concern is that you might muck it up if you don't understand the wording. Can you find a cheap lawyer? Or one of the schemes run by charities?

sorting out a problem will is eye wateringly expensive.

I understand your concern, thanks. I am looking around at the moment, but have been quoted some really unbelievable £££££ for the changes. I certainly want to make sure it's correct.

[2222]

https://freewillsmonth.org.uk/

can you wait until March?

if not, quite a few charities offer a cheap or free will writing service, although they expect a donation.

[kaputchnik]

https://freewillsmonth.org.uk/

can you wait until March?

if not, quite a few charities offer a cheap or free will writing service, although they expect a donation.

Thanks for that link, i'll take a look. I have no problem donating to a good cause.

[Peridot]

Hi Kaputchnik,
It may be easier to leave your share of the property to the children with a right to reside for your wife until particular events occurred. It should be considerably cheaper. Unfortunately having either a trust or a right to reside on the property does take it out of the realms of a 'basic' will so I suspect you would be very hard pushed to find a free or significantly reduced fee for a Will including this. A right to reside should be considerably cheaper than a trust however.

[kaputchnik]

Hi Kaputchnik,
It may be easier to leave your share of the property to the children with a right to reside for your wife until particular events occurred. It should be considerably cheaper. Unfortunately having either a trust or a right to reside on the property does take it out of the realms of a 'basic' will so I suspect you would be very hard pushed to find a free or significantly reduced fee for a Will including this. A right to reside should be considerably cheaper than a trust however.

Thanks for the heads up. I will have a look for more info on "right to reside"

Just out of curiosity, as my wife and i own our property as tenants in common is there any real need to have a trust etc in our wills if both of us state in our wills that our half of the property goes to the children upon death. If for instance i die first and my 50% goes to the kids, do they in the eyes of the law legally own that half?

Thanks

[Peridot]

Hi again,

If you leave your share of the property to the children they will legally own half the property with your wife. You are creating a trust situation although it does not have all the bells and whistles that a life interest trust can potentially have. With a right to reside your wife or you would not benefit from any income on the other's share of the property unlike a life interest trust where, for example the property could be let or sold and the proceeds invested. Usually the cost of maintenance and insurance of the property would be borne by the person with the right to reside and not funded by any income proceeds that may be available from a life interest trust.

At a basic level:-

A life interest is granted if a property or other asset (such as shares) is held on trust for someone’s benefit, for his or her lifetime. This person is known as a ‘life tenant’ and is entitled to any income generated by the property or asset for the duration of their life. When the life tenant dies, the asset is distributed to the Beneficiaries as stated in the owner’s Will.

An example of where a Life Interest may be appropriate is when the Will-maker has a second spouse and children from a previous relationship. They may wish to allow their second spouse to live in the home for a period of time, and then pass the home to the children as an asset.

So if the survivor of you needed to move into a care home for example then the property could be let out to generate some income toward the fees. The surviving spouse would have the benefit of that income.

A Right to Reside is an alternative solution to a Life Interest, where the Will-maker leaves an appointed person the right to live in the home rather than a Life Interest in it. This is the preferred option where the Will-maker wants to implement an added asset protection strategy.

The entitlement to reside at the property will usually be subject to conditions, such as keeping the property in good repair and paying bills and other expenses. In this case, the Beneficiary can’t rent the property to someone else, or receive any income from the property. When the entitlement ends, the property will be transferred or sold, and the proceeds of the sale will be distributed to the Beneficiaries in accordance with the Will.

A right to reside could not provide income for the lifetime of the spouse.

The best thing for you would be dependant on your financial situation and that of you both respectively in the event one of you has died.

Leaving your share directly to the children with no right to reside (or life interest trust) in place could lead to issues in the event any of the children divorced or become bankrupt (while owning the share in the property) Their respective share would be taken into consideration in any financial settlement in the divorce or by the trustee in bankruptcy. Unfortunately you never know what may happen in the future so I would suggest your wife needs some protection to ensure she is able to stay at the property and no order for sale could be made.

There are also potential tax implications that need to be considered. This link may help and there are other discussions out there. I have no affiliation with this law firm and am not making any recommendations but the article may be helpful in trying to understand the difference in the types of trust: https://wards.uk.com/online-services...ts-occupation/

All complicated stuff I'm afraid and will very much depend on your finances I suspect. I hope this helps point you in the right direction and hasn't just muddied the waters so to speak.

[kaputchnik]

Peridot,

Wow, many many thanks for all the info you have taken the time to give me. Very much appreciated.

Lots to consider and i will take a look at the article you suggested.

Once again, thanks.

All the best