The Plan You Wrote Then May Not Protect Them Now
When most parents write their first will, their children are young. The provisions are straightforward: everything goes to the surviving spouse, and if both parents die, the children inherit equally. Guardians are appointed. Perhaps a trust is established to hold the assets until the children reach a certain age.
It is a sensible plan for that moment. But children grow up. They marry, divorce, start businesses, accumulate debts, develop health issues, and make life choices that their parents could not have predicted. And when those changes happen, the estate plan that was written for a family of young children may no longer provide the protection, fairness, or flexibility that the family needs.
Marriage and Divorce
When a child marries, their spouse becomes part of the equation. If your child inherits a significant sum outright and later divorces, that inheritance may be considered a matrimonial asset and divided accordingly — particularly if it has been mixed with joint finances, used to purchase the family home, or invested in a shared business.
This is not a theoretical risk. Family courts in England and Wales have wide discretion to divide assets on divorce, and inherited wealth that has been treated as a shared resource is vulnerable. The longer the marriage and the more intermingled the inheritance, the greater the risk.
A discretionary trust in your will can provide significant protection. Assets held in trust are not owned by your child — they are held by the trustees for the child’s benefit. This means they are generally outside the scope of divorce proceedings, provided the trust has been properly structured and the assets have not been distributed outright to the child.
Even a simple life interest trust, which gives your child the right to income from the assets during their lifetime while preserving the capital for their own children, can provide meaningful protection against divorce claims.
Business Ownership and Entrepreneurial Risk
A child who runs their own business faces a different set of risks. Business failure, personal guarantees, creditor claims, and trading debts can all threaten personal assets — including inherited wealth.
If your child inherits a significant sum outright and uses it as working capital or security for a business loan, that money is exposed to commercial risk. If the business fails, the inheritance may be lost entirely.
Again, a trust structure can help. Assets held in a properly constituted trust are generally beyond the reach of your child’s personal creditors (though there are exceptions, particularly if the trust was established with the intention of defeating creditors). A trust that holds assets for the benefit of your child while keeping legal ownership with the trustees provides a layer of protection that outright ownership does not.
Financial Vulnerability and Debt
Not every child manages money well. Some struggle with debt, addiction, gambling, or simply poor financial habits. Leaving a large inheritance outright to a child who is financially vulnerable is not generosity — it is exposure to risk.
This is a sensitive area, and many parents are reluctant to acknowledge it. But a well-structured trust can provide for a financially vulnerable child without giving them unrestricted access to the capital. Trustees can make regular payments, cover specific expenses (housing, education, healthcare), and provide emergency support — all while protecting the underlying assets from being dissipated.
A letter of wishes, sitting alongside the trust deed, can provide detailed guidance to the trustees about how you would like them to manage the assets for the benefit of that particular child. This allows you to address sensitive family dynamics without making the provisions legally rigid.
Health Issues and Care Needs
If a child develops a long-term health condition or disability, the way they receive an inheritance can have significant implications for their entitlement to means-tested benefits. An outright inheritance above the capital threshold (currently £23,250 for care funding purposes) could disqualify them from benefits they need.
A discretionary trust can hold assets for the child’s benefit without the assets being treated as belonging to the child for means-testing purposes. This is a well-established planning technique, but it needs to be set up correctly, and the trust deed must give the trustees genuine discretion — not simply direct them to pay everything to the child.
Grandchildren You Did Not Have When You Wrote Your Will
When your will was written, you may not have had grandchildren. Now you may have several — and your will may not adequately provide for them. Some wills use the phrase “my children” as a catch-all, intending that grandchildren will eventually benefit. But the legal effect depends on the precise wording.
If your will leaves everything to your two children equally and one of your children predeceases you, what happens to their share? Does it pass to their children (your grandchildren)? Or does it fall into your residuary estate and pass to your surviving child? The answer depends on whether your will includes a “substitutional gift” clause — and many older wills do not.
Similarly, if you have established a trust for your children, does the trust deed include your grandchildren as potential beneficiaries? If not, the trustees may not have the power to benefit them, even if that is clearly what you would have wanted.
Blended Families and Step-Children
Second marriages and blended families create additional complexity. If your child has remarried, their new spouse may have children from a previous relationship. Your will may need to account for these step-grandchildren — or deliberately exclude them — depending on your wishes.
More commonly, the concern in blended families is that assets intended for your bloodline children end up passing to a step-parent’s family. If your child inherits from you, remarries, and then dies without a will (or with a will that leaves everything to their new spouse), the assets you intended for your grandchildren may pass entirely to someone with no connection to your family.
A trust that preserves capital for your grandchildren while allowing your child to benefit during their lifetime is the standard solution to this problem. It provides for your child without risking the ultimate destination of the assets.
The Equal vs Fair Dilemma
When your children were young, equal division was the obvious and fair approach. But adult children often have very different circumstances: one may be financially secure while another struggles; one may have five children while another has none; one may have a disability that requires ongoing support.
Equal division is simple, but it is not always fair. And fairness, not equality, is usually what parents actually want. A discretionary trust gives your trustees the flexibility to take circumstances into account — distributing more to the child who needs it and less to the child who does not.
This is a difficult conversation, and many parents avoid it. But the alternative — a rigid equal split that does not reflect the reality of your children’s lives — may create more resentment and hardship than a thoughtful, flexible approach.
What to Do About It
The solution to all of these issues is not necessarily a new will — it may be a revised will with updated trust provisions, a new letter of wishes, or simply a conversation with your estate planner about whether your existing provisions still work.
The key questions to ask:
- Have any of my children married, divorced, or entered new relationships since my will was written?
- Do any of my children run their own business or have significant debts?
- Do any of my children have health issues or financial vulnerabilities that should be addressed?
- Have I had grandchildren since my will was written, and are they provided for?
- Is equal division still the right approach, given how my children’s circumstances have diverged?
If the answer to any of these is yes, your estate plan deserves a review. Not because it was wrong when you wrote it, but because life has moved on and your plan should move with it.
If your family circumstances have changed and you want to check that your estate plan still works, get in touch with The Legacy Wills Company for a confidential review.