Making a Will after your spouse or partner has died

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 may need to think about whether you should make a Will – or amend any existing Will.

Alvin David, Wills and probate solicitor at KWW, 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If your partner died without a Will or with an out-of-date Will, then you may have encountered problems which you would like to prevent for your executors.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. 

Although not common, if your existing will is a mutual Will – made jointly with your spouse or partner – then it is effectively a contract preventing either of you from changing it both before and after death. If you made mirror Wills – separate Wills made on virtually identical terms usually leaving your estate to each other when the first of you dies – and you did not include an agreement not to change it, then you are free to change your Will.  

If in doubt, show your existing will to your solicitor for specialist advice – it may well be that you do not need to make a new Will anyway.

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 (IHT) when you die. Having a well-drafted Will can significantly reduce the IHT 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.

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 consider making another one.

For further information, please contact Alvin David on 0208 979 1131

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