Estate planning can be a complicated process, particularly when your family structure includes stepchildren. The Scottish Law Commission estimates that around half of all families in the UK are stepfamilies, with one in eight children being part of a stepfamily. It is clear that stepfamilies are not uncommon, and at present, there have been suggestions for changing the law to ensure that stepchildren have the same rights in inheritance as biological and adopted children.
However, under the current rules, step-parents will need to take extra care when planning for the future to ensure that their estate is distributed as they would have wished. In this article, we look at how you can provide for your stepchildren as part of your estate plan.
If you do not make a Will, your stepchildren do not have an automatic right to inherit from your estate in Scots Law. Only your spouse, biological children, or adopted children may automatically inherit. As a result, if you have stepchildren, you will need to decide whether you wish for them to inherit from your estate and to what extent. You must then discuss your wishes with a specialist Wills solicitor, who will be able to advise you as to how best your wishes should be set out in your Will.
There are several options available to you, and only an estate planning specialist can structure and draft your Will in such a way that your wishes will be carried out in the event of your death.
If you wish for your stepchildren to inherit from your estate, you will need to expressly state how much you wish for them to inherit; for example, ‘I wish to leave 10% of my estate to my stepchild, David’.
It is always advisable that you discuss your estate plan with those who will be affected by it. This can avoid confusion and difficulty after you have died, which will be a challenging time for those closest to you. We would also recommend leaving a Letter of Wishes with your Will, which explains why you have distributed your estate in this way.
Your expert estate planning solicitor may also advise you on incorporating a liferent Trust structure in your Will. On your death, your assets will be transferred into a liferent Trust to be administered by your named Trustees. Your partner will be entitled to the free use and enjoyment of these assets (for example, he or she can continue to occupy property rent free) and to receive any income generated by the assets (such as rents and dividends) for their lifetime. On your partner’s death, the underlying Trust capital will be transferred to the beneficiaries named in your Will as the ultimate capital beneficiaries. This is a common way to protect assets where the testator has children from an earlier marriage or relationship.
The Residence Nil Rate Band (RNRB) allows you to pass on your home free from inheritance tax, up to a threshold of £175,000. The RNRB only applies where you are passing the property on to your direct descendants. However, this does include biological children, adopted children and stepchildren (or other linear descendants such as grandchildren).
By putting in place a Will, you ensure that you control who will administer your estate and who will benefit from your estate, guaranteeing that your estate is distributed in line with your wishes and avoiding the risk of disputes, unnecessary stress, and increased administration costs.
Adam Swayne is a solicitor within our Asset Protection Group and specialises in estate planning and Wills. If this article has raised any questions or you would like to discuss any issues covered here, then please complete our contact form, or call us on 0131 225 1200 to speak to one of our specialist estate planning lawyers.
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