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The importance of updating or creating your will when going through a divorce



If you are separating or going through the process of divorce it is important that you arrange your affairs to reflect your changing circumstances. This would include updating your will.

FAQs


Q. I am going through a divorce. Should I wait until the divorce is finalised before updating my will?

A. If you die before obtaining the Decree Absolute, your existing will and any gifts to your spouse would remain valid.

If you have no will, your spouse is likely to be entitled to the majority of your estate under the rules of intestacy. Your spouse would also be in control of the administration of your estate and would be appointed as a trustee in respect of any money held for children. You should therefore take legal advice on preparing a new will as soon as possible.


Q. What else should I consider apart from the will?

A. Some of your assets will pass under your will (or intestacy) and others may not. If you own assets with your spouse in joint names such as a joint bank account or a house as joint tenants, these assets will pass automatically to the surviving owner regardless of the terms of your will or the intestacy provisions.

If you have death in service benefits under a pension scheme or a life assurance policy, the proceeds will very often be held in trust by the trustees of the scheme. The Trustees would pay out any funds either in accordance with the policy terms or in line with any expression of wishes you may have given to them rather than passing under the will. It is important that you contact the trustees to find out what will happen and to ensure that your updated wishes are taken into account.


Q. What about Inheritance Tax?

A. A divorce will have a dramatic impact on the Inheritance Tax allowance available to you. You may wish to explore ways to reduce the Inheritance Tax bill following your death which we would be happy to advise on.


Q. I hold my house as joint tenants with my spouse. Somebody has explained to me that I should sever my joint tenancy in the house so that this does not automatically pass to him or her in the event of my death before the divorce is concluded. Should I do this?

A. You should take proper legal advice before doing this. If your spouse dies before you then it may be more advantageous not to sever the joint tenancy.


Q. Who will look after the children?

A. You should consider appointing a guardian for any young children in your will.


Q. When I have Decree Absolute what happens to my will?

A. If you already have a valid will, your existing will remains valid to a certain extent, even after you have obtained the final decree of divorce. Any references in the will to your spouse (now ex-spouse) will be treated as if he or she had predeceased you but the rest of the will would remain valid. This may not be what you want so you should review your will accordingly.


Q. What happens if I remarry?

A. It is very important that you do not remarry before you have sorted out the finances in relation to your divorce. If you do, you will not be able to have your financial claims dealt with.

On remarriage, you should make a new will to ensure that your assets pass in the way you intend. You may wish to consider a more protective structure of wills particularly where there are children from a previous relationship. This might involve provisions to ensure that the inheritance of such children is protected by way of a trust while being able to benefit the new husband or wife in his or her lifetime.

Your marriage will revoke any existing will unless it contains specific wording to confirm that it is being made in expectation of the marriage. It is important to remember this if you are planning on making a new will before you get married. If your assets are substantially greater than those of your future spouse you should also consider taking legal advice on entering into a pre-nuptial agreement with your intended husband or wife.

Get in touch to find out more

This is just a brief outline of the types of things that you might want to consider.

If you would like further advice on the preparation of a will please feel free to contact us for a consultation.

Please contact Richard Horth at rh@wdavies.com for initial advice.

Find out more about our Probate & Estates services here.

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