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If you’re considering divorce, or in the midst of divorcing, don’t overlook making immediate changes to your Will
Friday, November 1, 2019
Friday, November 1, 2019
Going through divorce is one of the most stressful experiences in life. On the Holmes & Rahe Stress Scale, it ranks higher than imprisonment and is second overall. It is akin to grieving upon the death of a loved one.
I cut my teeth in Family Law before moving into the world of Wills, Probate and Trusts, so I empathise with those who have to go through such an experience. It isn’t always a harrowing experience and I have seen that it doesn’t have to be laden with bitterness, resentment or aggression. Such persons have my utmost respect. However, there is usually heartache and it is hard to escape the emotional box to think “what should I do next to protect myself?”
Putting my Wills, Probate and Trusts lawyer hat on, this is one of the most important times to in life think pragmatically, as hard as it may be to do.
Legally, there is no such thing as an “Interim Will”. A Will is a Will, so please forgive me for using a term that doesn’t exist in law. Some people the concept of an Interim Will difficult to think about, because the financial aspect of their lives is up in the air as it is negotiated through solicitors, perhaps involving mediation or arbitration. However, putting an Interim Will in place makes an incredible amount of sense.
If a person dies before the divorce process has been finalised, there will be one of two routes that are available. The first is that the Will is followed; most likely out of date and leaving most, if not all of the estate, to the surviving (and now separated) spouse. The second is that there is no Will, which means that the rules of intestacy apply; in this case, the surviving (now separated) spouse is automatically entitled to some, if not all, of the estate. The amount depends on the size of the estate but if your estate is less than £250,000, the surviving spouse receives everything. There are areas of law that can be used to mitigate this, for instance, the Inheritance (Provision for Family and Dependants) Act 1975, but this is a reactive approach.
What about the children? If there is a Will, you follow its content. Often, a Will leaves everything to the separated spouse, in which case the children receive nothing. If there is no Will and the estate is less than £250,000, then the children again receive nothing. If there is no Will and the estate is more than £250,000, the children will receive something, but it is complicated:
- The separated spouse is entitled to the first £250,000 free of Inheritance Tax and all personal effects, as well as half of the remaining estate (which could, for example, be income from shareholdings).
- The other half of the remaining estate passes to the children.
You would be forgiven for thinking that this is all a bit arbitrary. This can all be avoided by making an Interim Will, immediately after separation. It is not worth waiting until the divorce procedure starts, as it can take months, even years, to reach this point because of the way that the divorce process works.
Interim Wills usually aren’t complex by virtue of the fact that the matrimonial assets are going to be divided up and often it is hard to predict in what way. As a result, the cost of an Interim Will is in the low hundreds and we can support you throughout the process. It is a safety net well worth purchasing to protect your estate for your children and other loved ones.
Once the divorce is finalised and the financial terms are agreed, that is the time that Samuel Phillips Law would review your Will and factor in Inheritance Tax planning, particularly if you have receive a lump sum as part of the settlement. We take a holistic approach, involving your financial adviser and/or accountant, where it would be beneficial. We work with a panel of trusted professionals from the finance and accountancy sectors, so we are well-positioned to help you find the most appropriate advice.
It’s easy to bury one’s head in the sand when separating and going through a divorce. It’s hard to be proactive at such a time, but making an Interim Will is one of the easiest things you can do to protect your children and loved ones. You can’t afford not to.
For further information, or to arrange an appointment with one of our team, please call 0191 2328451 or contact reception@samuelphillips.co.uk
Written by Felicity Nelson, Senior Associate and Head of Wills, Probate & Trusts
