If you’re approaching retirement or in the latter part of your career, chances are you’ll already have made a Will at least once. If you haven’t, you should definitely do so. But even if you have, have you kept it up-to-date after a split from a partner?
Generally you think about drawing up a Will if you haven’t done so before when you’re about to get married or to buy a property because of the significant changes in circumstances that each of these actions create.
Most people stay in the same property for an average of 17 years after buying it and, having drawn up a Will, rarely think about the subject again. But the fact is, if you split up with your partner, your existing Will may well become invalid, leaving you in the same situation as if you hadn’t drawn one up – this is called intestacy.
Why is it so important to have a valid Will in place?
Hopefully by the time you’re approaching retirement, you’ll have built up some assets. For most, their largest asset will be the home they live in, which they may well own outright or are close to redeeming any mortgage they took out to buy it.
If you die, your Will should ensure that your assets are passed on to your nearest and dearest, who receive them in a timely fashion and with a minimum of stress. And these people may well be reliant on receiving your assets to ensure that their lives are not disrupted in addition to suffering grief. Your Will, for example, could ensure that your surviving partner is able to stay in your shared home along with any dependent children.
If you die intestate, the process which governs the disposal of your assets, known as administration, can be much longer, can cause much unnecessary stress at a time when people are grieving and may, in the worst cases, result in your assets not going where you’d have wished them to go as others who feel they have a claim on them are able to contest their ownership in court. There are numerous cases where families have been torn apart by the arguments over the administration of the assets of a deceased family member.
If you’ve made a recognised Will, once it’s been ruled as authentic and any death duties have been paid, HM Treasury gives your executors (those you’ve appointed to manage the disposal of your assets) what is known as a Grant of Probate they can then distribute your assets correctly.
How does the law view your existing Will if you divorce or remarry?
Married people generally own property as joint tenants, which means that each spouse co-owns 100% of any property as a single, indivisible share. There are tax benefits, particularly in terms of inheritance tax (IHT), where you receive all of your spouse’s assets on their death.
If you get divorced after making a Will, the Will remains valid but any gifts you instruct to be made to your former spouse are cancelled and they can no longer act as an executor of your estate. If you remarry, as a rule any existing Will is automatically revoked. It’s clear to see that there is room for considerable heartache if you don’t amend your Will or draw up a new one.
How do you make a Will?
It’s always recommended that you take appropriate independent legal advice about this but there are some general principles which don’t change very much over time.
You have to be at least 18, of sound mind and identify yourself and your intentions clearly on the document, which you should sign and date and have witnessed by two disinterested people.
These people must be at least 18 years old and cannot be beneficiaries – that’s people who you’ve chosen to benefit from your assets after death – and must not be spouses of beneficiaries or members of your family.
You have to name at least one beneficiary (a person who you decide will receive some or all of your assets) in your Will and appoint between one and four executors – these are people who’ll manage the disposal of your assets.
Have you got to use a lawyer?
You don’t have to use a lawyer to draw up a Will but you’re well advised to consult one. A mistake can invalidate your Will, effectively making you intestate and requiring your estate to go to administration, as described above and entailing the possibly disastrous consequences referred to.
Should you get a ‘home-made’ Will?
You should think very carefully before opting for a ‘home-made’ Will – there are numerous media reports around which describe the mess which can occur when one of these fails.
A case in recent times involved Barclays Bank’s home-made Will business. A customer drew up a Will and his intention was that a child from a previous relationship could benefit from a house he shared with his wife (unrelated to the child). But the Will didn’t properly consider joint tenancy rules: after his death, his wife successfully contested the Will and his child received nothing.
In terms of cold fact, the man bought the Will for £90 cost but his child lost half a house over it…
How do you alter your Will?
You add what’s known as a codicil to your Will. This can vary or entirely cancel an existing Will. You should always consider adding a codicil to an existing Will if you divorce or remarry. In all these matters, you should always seek professional legal advice.
Where should you store your Will?
You should keep your Will in a safe place. Most frequently, your solicitor looks after it for you and your executors should be aware of where it’s stored.
By Marcus Simpson
Digital Marketing Manager