QLD Best way to leave share of house to children?

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Happy88

Active Member
2 September 2018
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Hi all,

My husband and I are late 30s with 2 small children and are just about to have our first wills drawn up. We own a house with a mortgage.

I'm just wondering if the below scenario is feasible and how I arrange it (by tenants in common?). I want to give it some thought before seeing a solicitor.

I am proposing on my death that my super and life insurance funds are left to my husband to pay off the house, as well as him having all savings, cars etc.

But I want my 50% of the house to be split between my 2 children to be received on my husband's death. (If he sells the house does he need to give them their share then though?) Ideally they will get his 50% also, but if he remarries they will of course have to share.

I have witnessed 2 family members be scarcely provided for from their parents wills due to remarriage so I want to guarantee my share for my children.
 

Rob Legat - SBPL

Lawyer
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16 February 2017
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The first thing you need to find out is how you and your husband hold the property. If it is as 'joint tenants' then it will not form part of your estate that you can gift to your children. The property will automatically go to the surviving joint tenant. If it is held this way, you would need to formally sever the joint tenancy before you can make provision in your will to deal with it.

The second thing is that superannuation and life insurance proceeds generally do not form part of your estate either - they are dealt with separately. The superannuation will go to the nominated beneficiary/in accordance with any current binding death benefit. The life insurance will be paid to the nominated beneficiary on the policy.
 

Happy88

Active Member
2 September 2018
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Ok thanks good info, I will chase these things up and take care of prior to our visit to draw up our wills. Kids change everything!! I wouldn't have cared enough where it all went to bother with any paperwork before!
 

Tim W

Lawyer
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28 April 2014
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Sydney
1. First things first.

Are the kids yours and his, or just yours, or a blend?

2. Super.

Your super is not part of your estate.
You can't bequeath it in your will, in the same way as you can a house, or an item of furniture.
You can, however, instruct your super fund (who act as a trustee of your money)
about what you want to have happen with it, and any related Life products, when you die.
They will not generally disburse themselves - such as pay a bank for a loan.
Rather, they will send the corpus of the money to whomever you direct - which can be to your Executor.

3. The house

This needs to be in your will.
Nowhere else will have legal effect.

As Rob said above, it's deal-breakingly important that you understand the nature of your holding.
Joint Tenancy and Tenancy In Common are quite different, and operate quite differently.
Especially in the event of death.

Separately, it also matters whether or not, when you die, there is an debt linked to the property.

All of which means that you need to set up succession quite differently, depending on the variables.

4. The Bottom Line

You can certainly Do Something Now.
And it's a good idea. It will "help" later, when the time comes, in lots of ways.
But it's not DIY. Some silly form from the newsagent won't cut it.

You will need to engage a solicitor to get it all set up properly.
 
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