Coming to terms with the death of your spouse or partner will take time, but at some point, you will need to think about financial and legal issues. Once probate has been obtained and their estate has been settled, you should consider whether you should amend any existing Will or make a new one.
David Roper, Wills and Probate solicitor with Lawcomm Solicitors in Whiteley, explains what you should think about to protect your financial position and to provide for your loved ones on your own passing.
If your partner died without a Will or with an out-of-date Will, then you may have encountered problems which you would like to prevent for your executors.
If you made your Wills together, then your options may be limited by the type of Will. Mutual Wills are very unusual. They are separate Wills made on virtually identical terms usually leaving your estate to each other when the first of you dies, but they do not allow the survivor to change their Will. They are effectively a contract preventing either of you from changing your will both before and after death.
Far more common are mirror Wills – separate wills made on virtually identical terms usually leaving your estate to each other when the first of you dies – and if this is what you have then you are free to change your Will.
Lawcomm Solicitors offers a free Will review. We will confirm the type of Will you have and, having listened to what you want to do, advise you if you need to change your Will at all - it may well be that you do not need to make a new Will.
Things to think about
When you feel able to think about taking steps to make a new Will, consider carefully how you want to divide up your assets and who should inherit your money, property and any specific items. You can also appoint guardians in the Will if you have children under 18.
The value of your estate may be substantially more than previously so it might be appropriate to think about how your Will can be structured to minimise the amount of inheritance tax payable when you die. Having a well-drafted will can significantly reduce the inheritance tax your estate may have to pay on death. There are many ways in which your Will can be used to do this, for example, through specific gifts or making a Will trust, so specialist legal advice is vital.
If your spouse or partner was the main beneficiary or your executor, then you will need to consider who you wish to benefit from your estate and who you trust to manage your affairs. Your will allows you to decide who gets what when you die, whether they are your children, friends and family – or a charity; and you also get to choose your executors to deal with the estate. Without a will, the law dictates who inherits what and who is entitled to administer your estate.
Now that you can make decisions on your own you might wish to do something more radical with your Will, something which your spouse may not have supported. For example, you may take the view that your children have made more than enough money and wish to leave your entire estate or a significant portion to a charity.
If your late spouse had children, it is wise to take their needs and circumstances into account. For instance, if stepchildren are financially dependent on you it is important to consider whether you should make provision for them in your Will, otherwise there could be the risk of a legal claim against your estate.
More haste less speed
Unless you are very ill, or there is another reason why you need to make a Will urgently, take care not to act too speedily. Get used to your new circumstances.
To make a will, it is necessary to be of sound mind and have what is called ‘testamentary capacity’. So, if you are still suffering deeply because of your grief it is best to delay making a new Will, otherwise the Will might be challenged after your death and could be deemed invalid on the basis that you lacked the necessary mental capacity
Take care also if someone tries to pressurise you into making a new Will, including terms to their own benefit or excluding other family members.
It is important to discuss such issues with your solicitor, particularly if you are suffering acute grief, are worried about undue influence, or wish to make arrangements which might be unpopular.
You can amend your Will as often as you like, so keep your new Will under review, particularly if your financial or personal circumstances change. Remember, if you remarry or enter into a civil partnership, any existing Will is automatically revoked and is no longer valid so you will then need to make another Will.
For more information, please contact David Roper in the Private Client team on 01489 864 137 or email David.Roper@lawcomm.co.uk.
This article is for general information only and does not constitue legal or professional advice. Please note that the law may have changed since this article was published.
