Written by Julie McDonald

Family Solicitor/Principal at Julie McDonald Family Law

Julie is a family solicitor and part of a team that specialises in all aspects of family law.

Everyone should make a Will and, if you already have one, review it regularly to ensure it reflects your wishes and the current law. Executors and Beneficiaries may die before you, children and grandchildren are born and may not be provided for and the law changes on a daily basis.

Many matters need to be considered when making a Will and if you are separated, it is even more important, particularly if you have children.

So, what are the 10 main things to think about?

Executors – you need to appoint someone to take care of your affairs when you die. Executors find out what you have got by way of assets, etc and then follow the terms of your Will. If you appoint just one Executor it is advisable to also appoint a reserve, just in case your chosen Executor dies before you, or is otherwise unable or unwilling to act. If any of your Beneficiaries are children or will not receive their share of your estate straight away, two Executors are required as they will become Trustees to look after the money for the Beneficiaries until they inherit.

Guardians – you need to decide who will look after your children if you die before they reach the age of 18. If you are separated, there may be reasons why it would not be in the best interests of the children for the other parent to look after them. Or, if the other parent dies before you, you need to consider who will look after the children. Your appointed Guardian would obtain Parental Responsibility, so would be legally allowed to make decisions about the upbringing of the children, e.g. medical decisions and choices regarding schooling (with anyone else who also has Parental Responsibility).

The family home – if you still own the family home with your ex, you need to take advice from a family solicitor to protect your interest/share. Also, in your Will, you need to decide how your share is dealt with. Are you happy for your ex to live in the property with your children until they reach the age at which they would inherit their share? Or should the property be sold and your share held in trust for the children?

At what age should the children inherit – this is always a difficult decision. Should the children receive their share of your estate at age 18, or should you stipulate age 21 or older? You will need to consider what the children will need and when, and also any potential tax implications, particularly when children are to inherit in their 20’s or older.

Pets – deciding who has the family pets upon separation can be as difficult and emotional as who takes care of the children. However, only a small percentage of Wills have a provision for pets. You need to decide who will take care of your pets when you die and also whether you should leave a sum of money for their care.

Excluding your ex – if you are separated but still married, you need to include a clause in your Will to specifically exclude your ex (unless of course you do want to leave them a share of your estate). Unless you are divorced and have a financial clean break (a Consent Order) sealed by the Court, excluding your ex in your Will is not enough to stop any claims. It is essential therefore to take advice from a family Solicitor at the point of separation or even if you are considering separation.

Pensions – although pensions are dealt with separately, you do need to consider who will receive your pension benefits when you die. You would need to contact your pension provider(s) and complete a nomination form or letter of wishes to deal with this.

Life assurances and death in service policies – as with pensions, you can nominate who is to receive your life assurance and death in service benefits when you die. You would need to contact the provider(s) and complete the necessary paperwork

Lasting Powers of Attorney – making a Will deals with matters when you die. However, if you lose the capacity to deal with your financial affairs, it is immensely helpful and much cheaper if you have already made a Lasting Power of Attorney to appoint someone to deal with matters for you.

Other considerations – if you own a business with your ex, you need to consider how to deal with separating your business interests as well as your personal affairs.

There may be other issues to consider in addition to those outlined above. It is essential, therefore, to take advice from both a family Solicitor and a private client (Wills) Solicitor as soon as possible either after separation or when you are considering it.

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