Most parents want to ensure that their children will benefit from their estate when they are gone. However, without careful preparation, what your children eventually receive may differ from what you intended. The law follows a strict hierarchy of inheritance, and if you die without making proper arrangements, such as a valid will or trust, your assets will be distributed in accordance with the rules of intestacy, rather than your personal wishes.
This can mean that depending on your circumstances, your legal spouse or civil partner may inherit before your children. By taking the time to plan ahead and seeking advice from our expert solicitors, you can ensure that your estate is distributed as you want it to be, whether that means utilising trust structures or outright gifts to your children.
This is a collaborative post.
What Are the Rules of Intestacy and How Could They Affect Your Children’s Inheritance?
If you die without a valid will, your estate will be distributed in accordance with the rules of intestacy – a fixed legal framework that denotes a hierarchy of inheritance based on familial relation. Only married or civil partners and close blood relatives can inherit under these rules. Unmarried partners, stepchildren, and friends are excluded, even if they played a central role in your life.
For parents, this lack of flexibility can create unintended consequences. A surviving spouse or civil partner is entitled to all personal belongings, the first £322,000 of the estate, and half of anything remaining. The other half is then divided equally among any children. If there is no surviving partner, your children inherit everything once they turn 18. While this structure may seem straightforward, in reality, family situations are rarely that simple.
Imagine, for example, that your surviving partner finds companionship again after your death and decides to remarry. Once that marriage takes place, any previous will they had becomes invalid, and if no new one is made, their estate will pass according to the intestacy rules. If your partner inherited your entire estate when you died, this could potentially leave your children with nothing if the value of the estate is less than £322,000. Alternatively, your partner might have a falling-out with your children and decide to change their will to exclude them. Even “mirror” wills, where you and your partner agree to leave your estates to one another and then to the children, cannot guarantee protection, as the surviving partner is free to rewrite their will entirely at any time.
The rules of intestacy also fail to recognise blended families. Stepchildren from a previous relationship have no automatic right to inherit, and if your partner remarries or has more children, those new family members could inherit ahead of your own. Over time, your children’s share could diminish or disappear altogether and they may need the help of inheritance dispute solicitors to pursue what you intended to give them.
Without a carefully written will, you lose control over how your estate is divided, who benefits first, and how your children are provided for in the long term. By making a will, you can outline clear instructions, appoint trusted executors, and put structures in place such as life interest trusts, to protect your children’s inheritance regardless of future changes in relationships or family circumstances.
What You Can Do to Make Sure Your Assets Are Distributed to Your Children
There are several ways to make sure your estate is handled in line with your wishes and that your children receive their inheritance, regardless of how family circumstances may change in the future.
Life interest trusts
A life interest trust allows you to provide for your partner or spouse during their lifetime while safeguarding the inheritance for your children. Under this arrangement, your partner can benefit by continuing to live in your home or receive income from investments, but they do not own the capital outright. When they pass away, the remaining assets are transferred to your children in accordance with your will. This structure offers a balance between supporting your partner and protecting your children’s long-term inheritance.
Discretionary trusts
A discretionary trust gives trustees the authority to decide how and when assets are distributed among the beneficiaries named in the trust. Although the term ‘discretionary’ suggests flexibility, trustees are bound by the trust deed and a framework of legal duties that govern how they exercise their powers. They must act in accordance with the trust’s terms, comply with relevant trust law, and consider the individual circumstances and needs of the beneficiaries. This structure allows the trust to adapt to changes in family circumstances or to support beneficiaries who are young or financially inexperienced, while ensuring the trustees’ decisions remain lawful and responsible.
Leaving gifts on the first death
When preparing a will, you can choose to leave specific gifts on the first death – that is, when you die before your partner or spouse. These gifts can take many forms, such as a set sum of money, a share of property, or particular possessions that you wish your children or other beneficiaries to receive immediately, rather than waiting until after your partner’s death.
Leaving gifts on the first death can be a practical way to provide financial support to your children or to pass on sentimental items while also ensuring your partner remains secure. For example, you might leave a portion of your savings or an investment fund to your children, while placing your home or remaining assets in a trust for your partner’s lifetime.
This approach can balance the needs of both your surviving partner and your children, reducing the risk of future disputes or unintended exclusions.
With careful planning and the right legal structures in place, you can be confident that your assets will ultimately benefit your children in the way you intend.