Making a Will when your partner has died

• Posted onJuly 22, 2020

A bereavement can be a difficult time and, of course, your first priority is likely to be arranging the funeral and registering the death.

However, after you have had a chance to grieve, it would be sensible to consider if your existing Will needs updating or whether you need to make a Will for the first time.

 

What should you consider if you have an existing will?

In many cases, your existing Will will state who is to inherit your property, if your spouse or partner has died before you. You should also check whether they were appointed as executor and, if so, whether other executors are appointed as well, or whether the Will includes the appointment of a substitute executor which now takes effect.  If your existing Will needs updating to some extent, it may be possible to prepare a Codicil, instead of making a new Will.  We can advise you whether a Codicil would be appropriate, but often a new Will is likely to be preferable, particularly if your current Will was made some time ago.

What if a new will is needed?

You will need to choose between 1 and 4 individuals to be your executors.  In many cases, some or all of the beneficiaries will be appointed as executor.  In some cases, you may wish to appoint the directors of WSP Solicitors Limited to be your executors.

You will also wish to consider whether your Will should include legacies of cash, or specific items of property, to named individuals or charities. With regards to personal possessions, often called personal chattels for legal purposes, it is possible to leave these to your executors and express the wishes that they will distribute them in accordance with a note or memorandum of wishes that you leave at your death.  The advantage of that arrangement, is that you can change the note of wishes at a later point in time, without having to redo your Will.

Once you have given consideration to legacies, it is usual to leave the entire residue of your estate, which means all property of any kind that you own at your death, to one or more beneficiaries in equal shares, or in the shares that you want.  In many cases, the beneficiaries will be your children, though some or all of your estate can be left to other family members, friends or charities, if you wish to do so.

What are the inheritance tax implications if you have survived your partner?

When you are making your new Will, it is worth giving some thought to the inheritance tax allowances that will be available on your death.  If you have survived your husband, wife or civil partner and they have left everything to you, then you will benefit from their transferable inheritance tax allowances.  However, the transferable allowances do not apply for couples who are unmarried, unless you are in a registered civil partnership.

If you also have children, this means that a total tax free amount of £1million may be available, before inheritance tax has to be paid at the rate of 40% on the value of your estate above £1million.  However, careful consideration of the rules will need to be given in any particular case.

It is important to remember that part of the inheritance tax allowance, called the main residence allowance, which is currently £175,000 for an individual, only applies if you leave an interest in a residential property to lineal descendants in the Will.  We can advise you on the likely inheritance tax allowances that will be available and on the other exemptions and reliefs that may apply to your estate.

What if you have made mutual wills?

It is important to check, if a husband, wife or civil partner has died before you, whether you made what are known as mutual Wills.  These are Wills that include an agreement that the survivor will not revoke or change their Will after the first death. If you have made mutual Wills, it is usually not advisable to make a new Will after the first death, because that could lead to claims against your estate from the beneficiaries who were intended to benefit from the mutual Wills.

Finally, it is important to remember that a new Will must always be signed and witnessed in accordance with the required legal formalities.  We can advise you on these requirements and, in some cases, act as the witnesses to your new Will.

For more information on Wills, Trusts and Probate, you can view our department web pages here. You can get in touch by filling in the form in the sidebar of this page or alternatively, calling us directly on 01453 847200