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Divorce and the Importance of Making a Will

Going through a separation or divorce will be a very stressful time. When making the big decisions regarding the division of property, money and children, what happens to your assets upon death can be overlooked. In some cases, this is left too late.

Following divorce, your existing Will still takes effect, though operates as if your former spouse died on the date the divorce became absolute.  However, as the divorce process is not immediate it is vital to ensure that any existing Will is updated immediately, particularly if you wish individuals other than your (soon to be) ex-spouse to inherit from your estate.

Meanwhile, if you die without leaving a Will the Intestacy Rules apply to your estate, which may 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 an additional sum of half of the remainder. The other half passes to a trust controlled by the surviving spouse for your children to inherit at the age of 18. In the event that you do not have children, the surviving spouse will inherit the entire estate.

Deciding who is to benefit from your estate is at the centre of any Will. However, this is not always as straightforward as anticipated.

If you have children, it may not be quite as simple as stating that you would like them to inherit your estate. It is possible that, without proper provision, the funds intended for your children will be under the control of your ex-spouse, as their sole remaining guardian.

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 messy inter-family litigation, and the children may ultimately end up in the care of individuals you would not have chosen.

You may therefore wish to consider the flexibility provided by a Trust.

Under a Discretionary Trust your Trustees will have the discretion to decide as and when the beneficiary is to receive part or all of their inheritance. It can also help ensure that your ex-spouse does not have influence over the use of the funds.

It is important to consider the appointment of Executors and Trustees, as these are the individuals who administer the 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. These can be the same people as the guardians, but you may wish to consider independent individuals, to ensure there is some neutrality in the management of the funds.

These are just a few of the issues to consider when going through a divorce or separation. Please contact me if you wish to discuss this in more detail.

Disclaimer: This article is not intended to constitute legal advice.  For legal advice in connection with the above, please contact us directly.

Please note that outside of office hours, I am available to see you on a Saturday morning by appointment, if required.

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