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. In this article we take a what happens to a will after divorce and why you need a new Will.
Even if you already have a Will in place, once you have decided to separate or divorce you should make a new one.
Preventing your ex from inheriting your assets
If anything should happen to you following separation but before your divorce is finalised, your ex may inherit from you if they are named as a beneficiary in your Will.
If you do not have a Will, they will automatically inherit much of your estate, if not all of it, under the Rules of Intestacy. These are rules that detail who will inherit your assets if you should die without a Will and for many people they mean that loved ones will miss out on inheriting.
By way of example, the Rules of Intestacy leave everything to a spouse where a couple does not have children. If they do have children, the spouse will inherit the first £270,000 of the estate plus all personal possessions. They will also receive half of the remainder of the estate. The other half will be shared equally between any children the deceased has. This means that children will generally receive substantially less than a spouse.
Making a new Will following divorce
Before your divorce is finalised, you should put a new Will in place. If you have a Will that names your ex, then any gift to them will fail, as if they had predeceased you, unless this has been specifically contradicted in a Will written in light of your divorce.
They will not be able to act as an executor or trustee either once you are divorced. Many people name their spouse as both an executor and a beneficiary. This means that a divorce can leave an estate in difficulties, both without an executor and with a major gift that fails.
If no-one else is named as a beneficiary in your Will, then your estate will pass under the Rules of Intestacy to other family members in a strict order. This could mean that those whom you would like to benefit from your estate will not receive anything.
Jointly owned property
As well as making a new Will, you should also ensure that any jointly owned property is left to whom you wish. If you and your ex own a property together, it will either be owned by you as joint tenants or as tenants in common.
If your property is owned by you and your ex-spouse as joint tenants, then should you die, it will automatically become wholly owned by your ex-spouse as the other joint tenant. Property owned in this way does not pass under the terms of a Will.
If your property is owned by you both as tenants in common, then your share will pass under the terms of your Will or, if you do not have a Will, in accordance with the Rules of Intestacy. This means that it does not automatically pass to the other joint owner.
You can sever a joint tenancy so that a property goes from being held as joint tenants to being held as tenants in common. It is recommended that you take legal advice to ensure that your property is held in the most beneficial way for you and your family and so that it will pass to your choice of beneficiary, should anything happen to you.
If you marry, any existing Will automatically becomes invalid. Again, this can mean that those whom you would wish to take care of after you are gone could be left out or receive substantially less than you might want them to have. This could include your children from a previous relationship.
If you are considering remarrying, it is important to put the right Will in place to provide for your family. We can advise you how to deal with complicated family situations and provide for a new spouse during their lifetime while still safeguarding your estate so that it is passed ultimately on to your children, should you wish.
Dealing with a divorce is never easy, but by attending to all of the legal necessities now you can go forward with the peace of mind of knowing that, should anything happen to you, your loved ones will be provided for in the way that you would wish.