Divorce or separation is a challenging time, not only emotionally but also in terms of the legal and financial complexities that follow. As it is when any major life changes happen, it is very important to consider updating your will . Some people overlook this step but ensuring that your will reflects your current wishes is crucial to safeguarding your assets and ensuring they are distributed according to your intentions.
In Scotland, inheritance laws can have significant implications if you do not update your will following a divorce or separation. This article will explore why it is essential to update your will in these circumstances, what changes you should consider, and how to make these updates.
Why Update Your Will After Divorce or Separation?
When you get divorced or separated from your partner, it’s easy to focus on the immediate practicalities — where you will live, how you will divide your assets, and arrangements for any children. However, one aspect that can often be neglected is your will. Failing to update your will can lead to unintended consequences, particularly in how your estate is distributed after your death.
In Scotland, the law treats divorce and separation differently. If you are married and get divorced, any bequests to your former spouse in your will are automatically revoked unless explicitly stated otherwise. This means that your ex-spouse will not inherit anything unless you specifically include them in a new will. This is due to an update in law as part of The Succession (Scotland) Act of 2016. However, this automatic revocation does not apply to separated couples who are not legally divorced. If you remain separated without formal divorce proceedings, and without a separation agreement, any provisions in your will for your former partner remain valid. This could result in your ex-partner inheriting assets that you no longer wish them to have.
Furthermore, if you do not update your will after separation, you may inadvertently benefit your former partner at the expense of other loved ones. For instance, if your will names your ex-partner as the executor of your estate and your divorce is not yet finalised, they could end up controlling how your assets are distributed, despite your separation. Moreover, if you haven’t named a substitute executor, this could leave a gap in your will, potentially requiring a court application to appoint a new executor — a complication that can be easily avoided by updating your will promptly.
Key Changes to Consider When Updating Your Will
When updating your will after a divorce or separation, there are several key changes you should consider to ensure your wishes are accurately reflected.
Appointing New Executors
If your ex-partner was previously named as the executor of your will, you should appoint someone else to fulfil this role. This could be a trusted family member, friend, or professional executor such as a solicitor.
Updating Guardianship Provisions
If you have children, it is crucial to review and possibly update the guardianship arrangements in your will. This ensures that the individuals you trust most will look after your children if something happens to you.
Reviewing and Revising Beneficiaries
It’s important to revisit the list of beneficiaries in your will. Consider whether you need to add or remove beneficiaries, such as excluding your ex-partner or including new individuals who have become important in your life. This is especially important for those who are separated but not yet divorced, as existing provisions will remain valid until legally changed. In the case of those whose divorce has been finalised, it’s good practice to update the names of those who will inherit from you so that there is no confusion or additional work for loved ones after your death.
Considering Any New Relationships
If you have entered a new relationship, you may want to include provisions for your new partner in your will. However, this should be done with care to avoid potential legal disputes, especially if you have children from your previous relationship.
Reviewing Joint Property Arrangements
If you and your ex-partner owned property together, you should review how this is reflected in your will. Depending on how the property is owned you may need to make specific provisions to ensure your share of the property is distributed according to your wishes.
The Process of Updating Your Will After Divorce
Updating your will after a divorce or separation in Scotland is relatively straightforward, but it’s highly advisable to seek professional legal advice to ensure that all aspects are thoroughly covered and that your will is legally sound. The process typically begins with consulting a solicitor who specialises in Scottish family law and wills. A solicitor will help you understand the legal implications of your divorce or separation and guide you through the steps necessary to update your will.
As with your original will, the updated version must be signed and witnessed correctly to be legally valid. In Scotland, this typically requires the signatures of an independent witness over the age of 16. Once your will has been updated, it’s important to store it in a safe and secure location, such as with your solicitor or in another trusted place where it can be easily accessed when needed.
The consequences of failing to update your will after a divorce or separation can be significant. If you die without revising your will, your estate could be distributed in a manner that does not reflect your current wishes. This could lead to disputes among surviving family members, unnecessary stress for your loved ones, and potentially costly legal battles. Moreover, without a clear and updated will, the law may distribute your assets according to the rules of intestacy, which may not align with your intentions. In Scotland, intestacy rules could result in your estate being divided in ways that benefit your ex-partner or exclude important people in your life, such as children from a previous relationship.
Looking for Support?
If you have recently gone through a divorce or separation, now is the time to review and update your will. At d and h, we have an experienced team who specialise in Scottish family law and estate planning. We can help you navigate this process with sensitivity and expertise, ensuring that your estate is protected, and your wishes are respected.
Don’t leave this important task to chance. Contact us today to schedule a consultation and take the first step towards securing your future.