When you are going through a Separation or Divorce making a new Will is likely to be low on your list of priorities but it is essential this is considered in order to ensure your Estate passes in accordance with your wishes
Separation has no effect on a Will, and so if your Will made provision for your spouse he or she would still inherit under your Will, no matter how long you have been apart.
If you have no Will, your spouse would still inherit from you under the intestacy rules.
In both cases a Will should be prepared that reflects your wishes.
Many married couples appoint each other as the executors and beneficiaries of a Will. Divorce has the effect of removing the former spouse from the Will.
If the former spouse was given the larger part, or all, of the estate, and no substitute provisions are made in the Will, then after divorce there is no one to inherit this property and the intestacy rules will apply to the assets remaining.
Updating your Will ensures that your estate passes in accordance with your wishes rather than relying on the intestacy rules.
The Family Home
If you own the family home jointly it is important to check if this is held as joint tenants or tenants in common. Most married couples tend to hold their interest in property as joint tenants. This means that if one of you dies then the deceased’s share will pass to the survivor in accordance with the Survivorship Rule irrespective of any provision made in a Will to the contrary. It is important therefore to consider severing the joint tenancy so that you hold as tenants in common and then make a Will expressing how you wish your share to pass.
If you have separated or divorced, both parents should ensure that there is someone to take care of their children in their place. This can be provided for by the appointment of a Guardian in a Will.
At the initial meeting with one of our specialist FamilyTeam we will always discuss the importance of making a Will as part of our discussions with you. If requested a referral can then be made to our Wills and Probate Team who will be able to assist you further. Please contact us for further advice using the Call Back section at the bottom of the Family Law section of our website.