Divorce – the need for a new will

Getting divorced is a stressful time and so the last thing you probably want to be thinking about is your will. However, getting divorced means that you will need a new will and it is best to do it as soon as you possibly can, so talk to your divorce solicitor about it if you have questions.

What if I already have a will?

If you have already got a will, it will still be generally valid [ see below] after you get divorced. This is one of the main reasons you need to take steps to get a new one; it is likely that your current will refers to your spouse, but once you have separated from them you might not want to include them in your will in the same way. A new will needs to be drawn up to reflect that fact.

What if I don’t have a will?

If you don’t have a will, you should definitely get one. Dying without a will is known as dying intestate and, if you’re married with children, your partner will inherit a significant portion of your assets. If your estate is worth up to £125,000, your spouse is likely to inherit the full amount. If it is worth more than this, it will be split between your spouse and your children. The only way to change the division of assets is to have a new will.

What if we own joint property?

Many couples own joint property and so this is an issue that often arises in divorce. Despite any will you might have signed, if you die then normally your joint assets will pass to the joint owner. This means that even if you change your will, your spouse could still inherit. One way around this is to end your joint tenancy, which will allow you to name the beneficiaries you would like to inherit your share of the property. As well as property, you might need to consider other jointly-owned assets, such as bank accounts.

How does the divorce affect my will?

It is important to remember that you are not divorced until you receive your decree absolute. This means that if your current will names your spouse and you die prior to receiving your decree absolute, they will still be entitled to anything you may have left them. If you die without a will, they will also be able to inherit unless you have received your decree absolute.

Furthermore, if any will made by either spouse already contains a gift to a named former spouse, that clause is automatically revoked upon grant of the decree absolute , which usually means that any gift returns to the residue of your estate – so it’s highly likely that revoking such a gift to a former spouse will completely unbalance the whole will it. Furthermore, if you have appointed your spouse as a trustee or executor of any trust fund set up for the benefit of your children, that trust will fail.

What else do I need to think about?

If you are making a new will due to getting divorced, there is a variety of things you might need to consider. This could include:

• Choosing guardians for your children in case you die before they are 18.

• The age at which you would like your children to inherit in the event of your death (this could be at 18 or older).

• Making provision for any new family you might have, as they will not inherit unless you name them specifically in your will.

• Choosing friends or charities to benefit from your will.

• Choosing executors to handle your estate after your death.

 It is important that you have a valid, up to date will in case anything unfortunate should happen to you. If you don’t then your loved ones might find themselves fighting a contested will and your estate might not be distributed as you would have wished.

If you are getting divorced, speak to one of our divorce solicitors about the need for a new will. They will be able to advise you on the process and help you access the information you need in order to make a new will.

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