Understandably, making a Will may be the last thing on your mind as you go through the difficult experience of divorce. However, unless you do, you may find that your assets pass to your ex-partner in the event of your passing. Even if you separate amicably, this may not be how you wish your estate to be divided, and it may mean that your children or current partner are not provided for in the way that you would want.
No—divorce does not revoke a Will. Divorce also doesn’t mean that the Will you had in place before your marriage comes back into force. Rather, the Will you currently have in place remains in place. This is the case until you receive your decree absolute and your divorce is finalised. This applies no matter how long you have been separated from your partner.
Once your divorce is finalised, the same Will remains in effect; the difference then is that in reading the Will, it is, legally speaking, treated as if your ex-partner has passed away. It is for this reason that divorce lawyers will recommend writing a new Will or updating an existing one should you get divorced.
What if I divorce without a will?
If you don’t have a Will, the distribution of your Estate is governed by a set of rules referred to as the Intestacy Rules. Under these rules, only your spouse or civil partner and other close family members may inherit your Estate depending upon its value.
The list is a hierarchy with preference given to family members who are more closely related. It does not matter whether you are separated or getting divorced from your spouse or civil partner, they are still entitled to a share of your Estate.
Not all parents wish to make an equal provision for their children on death. You may already have made lifetime gifts to one child and wish to equalise matters between your children on death. One child may have additional needs, or your children may be under the age of 18 years old. Who would look after them and be appointed as guardian? Do you want them to inherit at 18? What if you do not see your children and do not wish to leave them anything?
The Intestacy Rules should not be a substitute for putting careful thought into making a will that is right for your unique circumstances. We are lucky in England to have testamentary freedom, which is not available in many European countries, testamentary freedom being the ability to leave our assets to whomever we like.
Should you update your will if you divorce?
The above means that updating Will after divorce is vital.
You should consider make a new Will at the start of your divorce even if you are uncertain about the financial outcome. This will offer the best protection for you, and your Will can automatically accommodate future changes in your financial circumstances.
Wills, Joint Property & Divorce
We can help you identify how any joint property and bank accounts are held and consider steps to change the basis of the ownership. This will ensure that your share of joint property passes under the terms of your Will and not to the surviving joint owner. We can help you ensure that protection is put in place.
Protective trusts and bloodline planning
We can provide advice on the use of trusts both in lifetime and as part of a Will which can act as a tool for managing wealth for children and young adults. We provide advice on trusts as a means of protecting funds within the immediate bloodline family.
Changes in circumstances
After your divorce is completed and as you move forward with your life, we can look with you at the circumstances where you should review your Will. In particular, we advise on flexible provisions that can be part of your Will to provide for a new partner whilst retaining protection for children.
We can advise on the impact that your divorce has on your inheritance tax position so that you can make informed choices in protecting your money and property in the future.
Can I write a DIY will?
It is possible, although inadvisable, to write a Will without the help of a legal professional. A Will does not have to be prepared by a solicitor for it to be valid.
However, low-cost DIY Wills are often poorly drafted, prepared by Will writers that are not trained solicitors and do not come with the expert legal advice needed to minimise any inheritance tax and financial issues. This could mean that on your death your final wishes are disregarded, or your loved ones could face expensive court battles over any disputes due to discrepancies in the wording.
If the Will is not drafted properly, they can contain contradictory clauses or do not clearly express the deceased’s intentions. This can quickly lead to disputes as the beneficiaries interpret the Will differently and often in a way favourable to themselves.
In a worst-case scenario, this can lead to court proceedings where the court will be asked to decide what the Will means. If a clause in a Will is too vague and uncertain, the court can rule that part of the Will is invalid and then the intestacy rules would dictate how that part of the estate passes. It is, therefore, crucial to prepare a Will properly with a solicitor to ensure that your loved ones do not become embroiled in legal proceedings after you die.
Get help from the best family law solicitors
As top family law solicitors, we understand how difficult it is to get divorced. Besides every issue you can encounter coming to a settlement, there are unexpected problems like your will which you might not see coming. Our job is to use our experience to help you through to the other side. Call us at 0330 056 3171, or request a free call back on a date and at a time of your choice.