When To Review Your Will
As much as your Will might have been “future-proofed” as far as possible, personal circumstances often change so we suggest reviewing your Will every 3 to 5 years or when one of the following events happen in your life.
Twenty reasons why you should review your Will
- You get engaged
- You get married, or register a civil partnership (see below)
- You separate or divorce (see below)
- You remarry (see below)
- You move house
- You move abroad
- You become a parent or grandparent
- You assume guardianship of a child
- Your children reach the age of 18
- Your children marry
- Your children divorce
- You inherit money or property
- You start up your own business
- You sell a family business
- You retire
- Your spouse or partner dies
- An executor, trustee or guardian dies
- Another family member dies
- A beneficiary dies
- There are significant changes in your physical or mental health
The life events most likely to affect your Will are divorce and remarriage.
Wills, Divorce and Dissolution: why you must update your Will before, during and after your divorce
According to the Office of National Statistics, 42% of all marriages in England and Wales will come to an end through divorce. Of those, 60% occur before the couple’s twentieth wedding anniversary. And 50% of divorcees will go on to remarry or form civil partnerships. Modern society is seeing rising numbers of stepfamilies and blended families, in which parents are raising children of a widening age range from multiple relationships and navigating the emotional, practical and financial issues that these raise.
We have expertise in designing and executing estate planning which balances the needs of all the children of the family, acknowledging what each spouse has brought to the marriage and ensuring that the (potentially competing) needs of former and subsequent spouses are catered for. A number of issues arise during what is often a delicate and emotive process.
Divorce and Existing Wills
If your existing Will was made during your first marriage or civil partnership, it is highly unlikely that it will still be fit for purpose, regardless of the stage you have reached in your divorce or civil partnership dissolution
Before your decree absolute (or final order) can be issued, the court will issue a decree nisi (or conditional order), which requires a minimum period of six weeks and one day to elapse until a decree absolute (or final order) can be issued leaving you free to remarry or register another civil partnership. Until then the legal relationship is in force for the purposes of the existing Will or any intestacy.
The risk is that the period between these two stages often extends far beyond the minimum six weeks, due to the negotiation of finances, access and custody. Throughout this sometimes protracted process any existing Will is still valid. Unamended, the Will would still benefit your ex in full should you die during the process, regardless of the financial settlement being negotiated.
Beware of a Will which appoints your spouse as a sole executor – an executorless Will inevitably mean an expensive court application. And watch for provisions in your financial settlement requiring you to provide ongoing maintenance to your spouse or children – if you die before these obligations are complete without having made provision for them to be honoured, there is a risk of legal action against your estate.
Relationships and Blended Families
If you are intestate, either because you have never made a Will or because your remarriage or new civil partnership has invalidated your existing Will, your new spouse will inherit the first £250,000 of your estate and half of any excess. Your biological children will inherit anything leftover but your stepchildren will not inherit from you. However, once your new spouse has inherited from you, on their (intestate) death, it is their biological children, not yours, who will go on to inherit what was once your money.
As this is rarely what remarrying spouses wish to happen, fresh Wills should be an intrinsic part of forming a new relationship.
The risk is that the period between these two stages often extends far beyond the minimum six weeks, due to the negotiation of finances, access and custody. Throughout this sometimes protracted process any existing Will is still valid. Unamended, the Will would still benefit your ex in full should you die during the process, regardless of the financial settlement being negotiated.
If you want to learn more, visit our page on Intestacy Rules or download the Intestacy Rules Infographic here.
The way in which you own your home with your new spouse or civil partner then becomes of critical importance. Owning a house together as “joint tenants”, which is the basis on which most couples own their home, means that on your death your new spouse receives the entire property automatically, by right of survivorship. This gives full ownership and control of the property to the survivor – who would be under no obligation to share it with your children on their death. Instead, consider purchasing upon, or converting your ownership into, a “tenancy in common”, in which your respective contributions to the purchase of the property are recognised as separate and distinct shares, which can be set at 50:50 or a ratio corresponding to your contributions. This, together with a Will drafted in the right terms (usually incorporating a Will trust) gives you much more flexibility to protect your spouse and also your own children if you pass away first.
Visit our Will Trusts page, to find out more.
Many clients come to us with the view that simple mirror Wills, leaving the entire estate to each other on first death and then to the children on the second death, is the right solution. However, this can be extremely counterproductive – even though it is undoubtedly the most simple and tax efficient solution. If you die first, such a Will passes everything to your spouse, but there is then nothing to stop them changing their Will subsequently – on a remarriage or purely to reflect personal preferences – so as to leave everything to their own children, effectively disinheriting your children.
Even if you trust your spouse not to do such a thing (which, in my experience, is unfortunately naïve – if you need a very public example, just Google Lynda Bellingham), your spouse may remarry after you are gone, rendering their mirror Will invalid and themselves intestate, so that the bulk of their estate, including what was once your money, will go to their new spouse!
The better solution is to make Wills including trusts, which benefit not only your spouse but also your children and remoter descendants, protecting assets for the family for up to 125 years after your death.
Declarations of Trust regulate who is entitled to real property held on tenancies in common or by sole owners. Click here if you would like to learn more.
Many clients have children from their first marriage who are nearly a generation older than those of the subsequent marriage – this is no longer the sole preserve of the Rolling Stones. And the more children you have, the more chance there is that something might go wrong in one of their lives, meaning that the appointment of trustees is of critical importance. Whether family, friends or professionals, trustees have to be people you believe have the skills to carry out your wishes fairly. And the best way to inform those trustees of your wishes, is to draw up Letters of Wishes, giving your trustees clear instructions as to how you want them to share out your assets to maximise the benefit to your family. and how you want it to be distributed for the good of the whole family.
Follow the link to learn more about Letters of Wishes.
In many cases, Enduring Powers of Attorney fail to specify substitute Attorneys and so this renders the document useless; for Lasting Powers of Attorney, many clients wish their new spouses to become their Attorneys perhaps with existing family members. It is important therefore to consider revoking existing Lasting Powers of Attorney for Health and Welfare and for Property and Financial Affairs and making new ones to include your new spouse or civil partner – unfortunately you cannot simply amend an existing LPA. As in all matters, the sequencing of these actions is important when carrying out this vital aspect of estate planning.
More on Lasting Powers of Attorney here.
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Will Writing And Estate Planning From Alex Truesdale Wills
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