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Expert advice: Tips for writing a Will in a second marriage

Written by Jane Healey.

Jane Healey

 

Nowadays second or third marriages are commonplace. Not everyone is aware of the impact they can have on your Will. When you marry or remarry, your Will becomes invalid, unless it was made in contemplation of marriage to your existing partner.

If you do remarry and fail to update your Will, then potentially your children would not inherit from your Estate upon your death.

If you die without a valid Will, The Intestacy Rules will apply to your Estate. Your new spouse will inherit any jointly held assets – such as property, bank accounts and personal items – and the first £250,000 of your Estate, and half of any remainder of your Estate.

Entering into marriage and failing to update your Will could leave your children from a previous relationship with little or no inheritance. It is essential you have a new Will in place to ensure the people you want to benefit inherit from your Estate upon your death.

If you were to die without a valid Will in place, and your entire Estate passed to your new spouse, you would have no guarantee that they would make any financial provision for your children.

If after your death your current spouse was to remarry, or fall out with your children, accumulate debts, or be subject to care home fees then your children may be left with no financial provision or entitlement.

In addition, your spouse may have a new Will prepared after your death and may elect to make no provision for your children.  Legal advice is essential in ensuring your children’s inheritance is protected, whilst also making suitable provision for your new spouse.

A standard Will may not be appropriate for the above situations – it may be preferable to create a trust within your Will. There are various types of trusts that you can create within your Will.

For example, you may elect for your spouse to be permitted to live in your property for the remainder of their lifetime after you have died, or if they remarry then your property, or share in that property be distributed to your children.

These type of Wills are sometimes referred to as Life Interest Trust Wills, or Property Trust Wills, or “Asset Protection Wills”. These types of Wills may also be sensible to consider in relation to preserving your assets, or your interest in your property from care home fees, and a trust may also be a suitable option for trying to ring-fence assets and retain them for your loved ones to inherit upon your death.

Another consideration which is sometimes overlooked is if you are experiencing matrimonial issues and currently divorcing your spouse may inherit until the marriage is dissolved and the Decree Absolute is issued.

Matrimonial finances can take a considerable amount of time to resolve, and it is essential that you have a new Will prepared as soon as possible. There are also other actions which you need to take in order to preserve your assets during this difficult time.

Much media coverage is now paid to persons who consider it appropriate to challenge a Will, either on grounds of validity, or making a claim upon a deceased person's Estate as no adequate financial provision has been made. Unfortunately, they often seek to remedy this via the Court system, which can be extremely stressful for all parties, not to mention expensive.

Do not put your loved ones through additional stress during bereavement – make sure you take professional legal advice.

Jane Healey is a partner at Forrester Sylvester Mackett Solicitors, specialising in Estate Administration, Lasting Powers of Attorney, Wills and Probate, Court of Protection matters and Inheritance Tax Planning. www.fsmsolicitors.co.uk