Divorce and the Importance of Making a Will

Going through a separation or divorce will be a very stressful time. You must make big decisions about the division of property and money. If you have children decisions have to be made about their future living arrangements.  At this very difficult time thoughts about what happens to your assets when you die can be overlooked.

Following your divorce, your existing Will still takes effect, although it operates as if your former spouse died on the date the divorce became absolute but what happens in the intervening period? The divorce process is not immediate, so it is important to ensure that any existing Will is updated immediately, particularly if you wish individuals other than your soon to be ex-spouse to inherit your estate.

If you die without leaving a Will the Intestacy Rules apply to your estate, which could be even more detrimental.  Under the Intestacy Rules, if you die leaving a spouse and children, the surviving spouse will receive the first £250,000 from your estate outright, and then half of the remainder together with all your personal chattels. The other half will be held on a trust for your children to inherit at the age of 18, the trust will be controlled by the surviving spouse. If do not have children, the surviving spouse will inherit the entire estate. The law does not recognise separation, so please do not think that just because you are separated or have commenced divorce proceedings that this is enough to dis-inherit your spouse or civil partner. 

Making a Will or updating your existing Will is paramount in cases such as this. However, you need to be careful if you have children, it may not be quite as simple as stating that you would like them to inherit your estate. If your children are minors, it is possible that, without proper provisions in your Will that the funds intended for your children will be under the control of your ex-spouse, as their sole remaining guardian and this may not be what you intended. 

The appointment of guardians is particularly important for children where both parents die or where you have sole parental responsibility. The absence of a guardian appointed in your Will can result in your children in the care of individuals you would not have chosen.

You may therefore wish to consider the flexibility provided by a Trust. Your Trustees under a Discretionary Trust will have the discretion to decide as and when your children are to receive part or all of their inheritance. It can also help to ensure that your ex-spouse does not have any influence over the use of the funds.

It is very important to consider who you appointment as your Executors and Trustees. It is the Executors and Trustees who administer your estate. If your children or minor beneficiaries named in your Will are to inherit from your estate, the Trustees would control the funds until such time as they reach the relevant age. You can appoint the guardians of your children to be your Executors and Trustees but you may wish to consider independent individuals, to ensure there is some neutrality in the management of the funds.

Don’t leave it to chance act now and make a Will or update your existing Will. 

If you want to set up a Will amend your existing Will, please contact Rebecca Bristow on 01548 288008 or at rb@startpointlaw.co.uk