Tamsin Caine of Smart Divorce recently spoke to JMW’s Tasnim Khalid to get the ins and outs of will making. Tasnim is a partner and Head of Department in the Wills, Trusts and Estate Planning team at award winning law firm JMW, based in Manchester’s Spinningfields.
For those of us going through separation and the divorce process, I asked Tasnim when the Will should be updated, or made if one wasn’t created during the marriage.
Tasmin feels that the sooner this is dealt with, the better. Generally, one of the largest assets of a marriage is the house. These are often held as “joint tenancy”. Therefore, if one of you dies, the whole house will then belong to the other. You are unlikely to wish this to happen once you are separated. It is important to sever the joint tenancy and ensure that instructions are in place as to how you now wish your estate to be distributed.
I understood that a Will was voided on marriage but not on divorce.
Whilst this is strictly the case, once the decree absolute is issued, if the ex-spouse was an executor or principal beneficiary, the law treats the will as though the ex-spouse died the day before. However, they can still be trustees and also beneficiaries of discretionary trusts and so they need to be amended to ensure that they are in line with your wishes.
How would you go about choosing a lawyer?
It is important to choose a specialist, someone with experience in the field but also that specialises in wills and estate planning. Also, look out for a lawyer with the STEP qualification, which is an additional specialist qualification in the area of estate planning. It is essential that you work with someone who you have rapport with, that you can build a relationship with and who will understand your priorities and needs.
Why choose a lawyer not a will writer?
For a basic will, there is no reason not to choose a will writer. However, as soon as there are any potential complications, it is worth taking the advice of a specialist. Lawyers will consider the bigger picture, involving financial planners, tax advisers, accountants, etc. They consider other aspects that might stop the wishes being granted. For example, an individual has lived with a partner for 20 years but wants to leave their estate to their two children, who do not belong to the partner. Although this looks fairly straightforward, the partner may have rights to live in the property, for example. The lawyer will consider putting additional things in place to ensure that the will can achieve everything asked of it.
What should I take with me to see the lawyer?
In an ideal world, Tasnim would like clients to have full details of their worldwide assets and liabilities. This would include the providers, reference numbers, values, life policies, pensions, mortgages, trust documents, nomination on death forms (also called expression of wish). Details of the family are helpful for the generation above and below. These should be full names, addresses and dates of birth.
What things should be considered for those separating or divorcing specifically?
Guardianship tends to be more of a complex consideration on divorce. If everything is amicable and you are happy for your ex-spouse to look after the children in the event of your death, then that is the most straightforward solution. However, this may no longer be appropriate, for example if they have move away or there is animosity between you. It can also be difficult to choose executors and trustees. The best choice are those who will carry out your wishes, particularly with regards to any children. You can change your executors and lawyers may offer to do this for nothing. It is far more important to have a will in place and change the executors than not have one.
Is there anything else to bear in mind?
When you have separated, be mindful of new relationships and try to future proof your decisions. Having said that, you should review your will every 3 to 5 years to ensure that it is up to date. They should be tweaked regularly as circumstances change, rather than being put in a drawer forever.
Tasnim Khalid has been specialising in Wills and Estate Planning since 2005 and can offer an initial no obligation meeting at her offices located in Manchester City Centre or in the comfort of your own home. Tasnim and her team can assist with all aspects of estate planning from advising on a basic Will through to more complex matter such as care home fees planning, business succession planning, inheritance tax planning and the use of trusts. Feel free to contact Tasnim directly on 0161 828 8339 or at email@example.com
Tamsin Caine is a Chartered Financial Planner at Smart Divorce. She specialises in working with separating or divorcing clients to help them to understand how to divide their finances to move forward with their lives. If you would like to speak to Tamsin or find out more about how she can help, email her at Tamsin@smartdivorce.co.uk.