Question: My wife and I have decided to divorce, and I recently instructed a solicitor. I am aware that when you divorce, you are supposed to update your will. Should I do this now, or wait until the decree absolute has come through?
Jane Gray (right), of Stowe Family Law’s Wills and Probate department, replies: You should make a will at the outset and not wait until your divorce is finalised.
If you already have a valid will in place, the terms of that will remain valid until a decree absolute is granted in your divorce. If your existing will makes any provision for your spouse and you die before the decree absolute, then your spouse will inherit under the terms of your will. This might not be what you would have wanted to happen. If you have children, you might want to protect your estate for their benefit .
If you do not have a will in place, then the Intestacy Rules will come into operation on your death. These are rules set down by law to decide who benefits from your estate. If there are no children or other relatives, the surviving spouse will be entitled to all the estate. If there are children, the surviving spouse will be entitled to your personal chattels and the sum of £250,000 as a legacy, together with a life interest in half of the balance of your estate. The Intestacy Rules are very cumbersome and can be expensive to administer.
When you are in the middle of a divorce, your rights over money and property are often to be determined or agreed between parties. Often property is held jointly and division needs to be agreed. Your will, however, can deal with your estate generally without the need to define specific property. Your will can encompass the property you legally own and property you may have a claim over. It is important that you seek advice upon any property held in trust or property held jointly with a third party. Often, jointly-held property passes outside the terms of any will or intestacy to benefit the surviving joint owner. Measures can be taken to ensure this is prevented and all of your estate passes under the terms of your will.
As a final note, you should be aware that a will made in the UK is revoked automatically if you enter a new UK marriage in the future. If you have a will, you should always review it to take into account changes in your circumstances.
Solicitor Jane Gray heads Stowe Family Law’s Wills & Probate department, founded in 2013 to meet demand from the firm’s clients. Jane has 15 years of wills, tax trusts and probate law experience and is a fully-qualified member of the Society of Trust and Estate practitioners (STEP). Contact Jane.