Don't get divorced without getting a new will

Divorce pretty much takes up all your time, energy and emotional capital (whatever that might be?).  So probably the last thing you will be thinking about right now is your will.  You should because it's very important.

train tracks diverging - like divorceThe process of divorce involves both the highly emotional and the deeply practical.  It all about changing tracks and creating a new life after divorce.  One of the important practical aspects often overlooked is drafting or redrafting a will.

The effect of divorce upon a will
If your marriage is ended by a Decree Absolute your will does not become void or invalid.  However, any gift to your former spouse is treated as if he or she had died on the date your decree became absolute.

That usually means the gift becomes part of the residue for the benefit of the residuary beneficiaries.  Of course, if you had left everything to him/her, then the effect would be as if you had died intestate (without a will).  In this case the distribution of your asset will be according to the rules of intestacy (see below).

I already have a will

Whilst you are still married a separation will have no effect upon the provisions in your will.  Many couples write wills that leave everything to each other.  If you no longer wish your spouse to inherit then you must make a new will setting out the new arrangements you want to make.

What if I don't have a will, or I have destroyed it?
If you die Intestate (without a will) the Intestacy rules will distribute your assets in a set way.  If you are married with children your spouse will inherit all your personal effects and at least the first £125,000 of your remaining assets which includes your home.  If your estate exceeds this amount your children will take half and your spouse will have an interest in the other half.  You have to make a new will to change this.

I own property jointly with my spouse
Normally on death any joint assets pass automatically to the surviving joint owner irrespective of the terms of any will that you will have made.  Therefore, even if you have redrafted your will your house could still go to your spouse.

This can easily be avoided by 'Severing the Joint Tenancy'.  Once the joint tenancy is severed you can leave your share of the house to the beneficiaries named in your new will. Other joint assets as bank accounts can also be severed in the same way.

I'm now divorced, what should I do
Given that you will now be in a completely different set of circumstances it is very wise to have a new will drawn up.  Here are some things that you might to think about when creating your new will.

Naming guardians for your children should you die before they are 18 years old
Defining at what age you want your children to inherit
Appointing executors to deal with your estate on your death
Have you a new family to think about?  They will not inherit anything unless you include them in your new will
Are there any friends or family that you want to include as beneficiaries

Divorce is a tough old business and getting what you want is never going to be easy.  One thing you can be sure of is that if you amend your existing will or write a brand new one you can be sure of organizing you financial affairs exactly the way you want them.  The best way to get things absolutely right is to have a will drawn up by experts.

 

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