VIC Help with Preparing Wills

[antonio defazio]

My wife and I own our family home and holiday home as tenants in common

We want to prepare our wills

Can we each leave our half share in our 2 properties to our 3 children equal shares with a condition the they cannot sell their interests in the properties till the remaining partner , either my wife or I pass away, and that the surviving partner has the right to live in the properties till his or her death?

Thanks

 

[Sarah J]

Hi Antonio,

Yes, that is perfectly possible.

You will need to write something along the lines of:

"I leave my interest in property X and Y to my wife, Z (name of wife), as a life estate for the duration of Z's life, provided that she survives me, and the remainder shall pass to my three children, A, B and C in equal shares".

I would get a lawyer to check the exact wording of the clause. But essentially what you are wanting is to vest a lift estate in your wife and then, remainder transfers to your children.

You should think about whether you want your children to hold the property as "joint tenants" (which means that if one passes before the estate vests, the other two will have 50% of the estate rather than 1/3) or as "tenants-in-common" (whereby if one passes before estate vests, their estate/children/spouse will have 1/3 share in the property and your other two children will have 1/3 each as well). If you want the latter, you should specify: 1/3 interest to A, 1/3 interest to B, 1/3 interest to C.

 

[Sarah J]

Your wife will do the same with her will in relation to her share in the property.

 

[winston wolf]

One thing to consider is what to do if the surviving spouse needs to go into care.
If the property needs to be sold buy the surviving partner they need to be able to do this while maintaining the beneficiaries interest.

Otherwise the surviving partner of there guardian may need to get the will varied(contested) and this will wast a lot of money.