Marriage may revoke an existing will, it does not replace the will with a set of readymade provisions. A will is in fact very like marriage: the first step in a lifelong plan which you have decided to take and which will be as important on your golden wedding anniversary as it is today.
There can be a whole range of reasons why anyone who marries or enters into a civil partnership needs a will, or a new will, and it is mainly in recognition of this that marriage is regarded as sweeping away all the existing provisions. The same applies to civil partnership, as does all the remainder of this article.
For a start, it is not even the case the surviving spouse inherits the whole estate of the first to die (currently limited to all the personal possessions, the first £270,000 of your estate by value and one half of any excess). If that is the intention, the will needs to make this clear.
The will also needs to name executors to deal with your estate, and possibly trustees as well if assets are to be held until beneficiaries come of age or some other contingency is to be met.
If everything does pass to the surviving spouse, the wills of both spouses must make clear what happens on the second death as well as appointing executors and trustees to act in those circumstances.
Is everything to pass to the children? In that case, are the children old enough to act as executors themselves? If they are still under 18, should you also name guardians as well as executors and trustees? Will they be the same persons as the executors and trustees?
If this is not covered, a court application for "parental responsibility" may be needed by some other family member who is prepared to take on the responsibility of bringing up the children and then finds they have no authority to do so. Better to consider this in advance and agree with the potential guardians that they will be prepared to act should the need ever arise.
The children may be old enough but are they mature enough? Should other family members, or trusted friends be appointed instead?
Perhaps there are no children at all. It will be much less likely under the current intestacy rules that the surviving spouse will have to share the estate with the deceased's own family but whose family is to inherit on the second death? Should it be left to chance as to who will survive and whose family will inherit everything?
Perhaps this is a second marriage and, while there are no children of that marriage, the needs of the second spouse must be balanced against the needs of the children of the first marriage. In order to strike a fair balance, life interests may need to be put in place protecting the second spouse while also guarding the eventual inheritance of the children. In this situation, the appointment of trustees who can manage the potential clash of interests is crucial, as is ensuring that all beneficiaries understand the situation and your wishes will be respected.
Finally, gifts to charity or other family members such as grandchildren will only happen if they are included in a valid will.
There may be an expectation that our beneficiaries will sort out this and every other problem for themselves. It is much more likely that the uncertainty left by the absence of a will poses more questions than the beneficiaries, however willing, are able to answer without assistance, and sometimes quite expensive assistance.
All plans need to be reviewed from time to time and we suggest for your will this should take place at least every five years. For more information please click here.
Originally published by Anthony Gold, July 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.