Why you need a Will if you’re getting divorced

Making a Will may not be the first thing you think of when you’re getting divorced, but it is an important part of looking after your assets and making sure only those you choose will benefit from them.

Even if you already have a valid Will in place, once you have decided to proceed with a divorce you should consider making a new one.

Preventing your ex from inheriting your assets

Once your divorce is finalised, your ex won’t inherit from you, even if they are named in the Will (provided it was made while you were married), but until the divorce happens they can still inherit.

If you don’t have a Will in place, then until the divorce is finalised, your spouse will inherit the bulk of your estate under the Rules of Intestacy. These rules apply to estates where no Will has been made and provide that if you don’t have children, your spouse will inherit your entire estate. If you do have children, then your spouse will inherit the first £250,000 of your estate together with all of your personal possessions. They will also inherit 50 percent of the remainder of the estate. The other 50 percent will be split equally between any children, meaning that your children will inherit substantially less than your spouse.

Making a new Will

If you have children, it is particularly important to put a valid Will in place so that they can benefit from your estate to the extent that you want them to.

If you own a property jointly with your ex, it is possible to leave your half to your children, provided you hold it as tenants in common. This means that both you and your ex can leave your share of the property to other people. If the property is owned as joint tenants, then on the death of one of you, it automatically passes to the survivor. A Will also allows you to name guardians for any children who may be under 18 and also appoint trustees to look after any money you leave them, until such time as you would like them to inherit.

If in time you decide to remarry, a Will can be vital in protecting your children’s inheritance. Otherwise it is possible that your estate might pass to your new spouse and ultimately be left elsewhere by them, or even used up in living and care home costs. You should also note that any existing Will becomes invalid upon marriage.

It is still possible to leave your new spouse a lifetime interest in a house or assets, to ensure that they do not lose their home or income, but once they reach the point that they don’t need them any more, the assets would pass to your children.

As part of the divorce process, it is advisable to make a new Will, appointing your choice of executor, beneficiary, trustee and guardian. That way, you can ensure that your loved ones will be cared for and provided for in the way that you choose.

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