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  1. #1
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    Default Any family lawyers out there? Will advice please.

    I couldn't find the Finance section sorry.

    I'm updating my Will this week, now that DS2 is here and exDH is not! I need some advice on nominating a Trustee. I'm trying to avoid the high costs of visiting a lawyer unless I have to.

    I have a substantial amount that would be left (worth more dead than alive!). I have a life insurance policy, superannuation & also a death benefit with my super. All up its approx $1m - this was because it was originally set up to pay out the mortgage, private school fees etc in the event one of us died.

    My dad is listed as my executor now that I've split with DH. However according to my paperwork, they recommend a separate Trustee that you expect to outlive you, if leaving money to young minors. My boys are both under 2 & I planned on nominating them as sole beneficiaries.

    Should I list exDH as the Trustee of their funds, since they would be with him if I died? Or am I better listing someone else completely that I 100% trust to do the right thing financially?

    Part of me believes exDH would honour my wishes (private school etc) and raise the boys as I wanted. However I no longer know the person he has become after what he's recently done, so I'm a little hesitant here. I'd hate for his new g/f to ever get her hands on my money!

    Has anyone else been in this position? Any reccomendations for what I should do? Basically I want all of my money to go towards the upbringing, education & maintenance of my boys.

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    No WAY would I appoint your DH. I would appoint a sibling/friend/relative. Is there anyone else that you could ask?

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    I'm not a lawyer but wonder if you could list your sister?

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    I agree with PP's Pesca. Choose another relative, you need to choose someone who you do trust 100%.

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    Haven't been in your situation but have recently done our will.

    It's a tough decision to decide whom to leave your children and finances to should something happen to you. Ensure you speak to the person you have in mind to be sure they are ok with it because they wouldn't necessarily be. We initially had chosen dh's best friend from school and his wife whom couldn't have children of their own whom have been married for years, have no debts, are very stable etc but they had worries which made us then realise they wouldn't be the best people to take on the responsibility so we went with our second choice, dh's sister. We listed dh's sister to be the carer of our boys should something happen to both dh and I. It's important to remember although you want everything left to your children you have to think about the cost of another person raising them, this is what the lawyer advised us, leave 10% of our estate to SIL and the remaining 90% split evenly between the boys. Our estate is worth millions. SIL is single person working fulltime with no kids so should she be left with the responsibility of raising the boys she needs to be looked after financially too. And write a letter to the person you choose stating your wishes and keep it with your will. Also ensure you advise that person where to find the will should the time comes.

    You could still list your father but just remember to change your will if something happens to him.

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    KG has given you some good advice.

    It's also worth stiplating very clearly your intentions in relation to your children. For us, we will have 4 kids and that is a big burden for someone to take on (financially and emotioanlly). We have decided to appoint DH's mother as their trustee and clearly stipulate what she is to do if we pass (where we would like them to live as they live in another State and schooling etc). we have also set up a trust for her so she has the money to buy a house, pay for schooling etc.

    I realise you want to save costs on this but it might be worth getting some legal advice. If your will is contested and falls over your kids will be in the hands on the public trustee who may bleed the estate.

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    Thanks everyone.

    It's not actually who will take care of the children as such. If something were to happen to me, they would go to their father, no question. If he wasn't here or capable, then one of my sisters will (she's aware and willing).

    It's more about the control of the finances I would leave behind for their benefit - so Trustee of finances only is what I'm confused about.

    I guess I'm just worried that if exDH has control of that money, does this mean his partner would access it too? Or if he died, would she get that money or would it stay with my boys?

    I really should go to a lawyer I know. But it's probably best to wait until later this year when the divorce is final, as Wills need to be updated after a marriage/divorce anyway I believe. I don't want to spend a lot now, only to have to pay again in 6mths time.

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    You could put it in trust and make him the trustee so he couldn't touch the money until they were of age? I have no financial or legal training so I'm unsure if a trustee can use the money themselves?

    Personally I wouldn't be naming him trustee. I would have a youngish family member like a sibling you trust.

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    KG touched on this but realistically, the money will need to be used by whoever is raising your children, and not neccessarily just for the children. Our lawyer explained it this way - there are extra costs involved with having more kids around, like the need for a bigger house and car, more tickets on holidays etc. We have listed my sister as the guardian of our children and although our estate will be left to our children should anything happen to us, there is a clause that allows my sister to take what she needs to care for the children. Her husband is not listed as a guardian (not that we don't trust him, our lawyer advised that it was simpler this way as you can't predict what will happen in the future eg divorce). He wouldn't be able to access the money by himself but of course there'd be nothing stopping him accessing it though my sister IYKWIM.

    You could list your Ex as a trustee along with another person you trust - and have it set up so that both need to agree before withdrawing/spending money.

    I'm a lawyer myself, and honestly, I would rather pay the money and have my will done properly. Our lawyer suggested so many things that we just hadn't thought of.

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    I am also a lawyer and would never do my own will. Trusts are very complex, and wills are a great way for families to become even more divided. Yes your exDH could charge a fee for administering the trust.

    I would wait until you do your divorce as often family lawyers will have a lawyer in their firm who can do wills for you. they may charge a bit less if it's part of a property settlement.


 

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