Wills Resources

Guardianship and your will

One important element you can manage in your last will and testament is guardianship of any dependents.

When you grant someone guardianship, they have the legal right to be responsible for the food, housing, healthcare and other necessities of someone deemed incapable of providing these things for themselves. This normally means children under the age of 18.

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If you intend to assign guardianship in your will, it is important that you should speak with anyone you intend to name as a guardian before doing so, therefore preparing them for the possibility (however unlikely) of taking responsibility for your dependents. This is important because guardianship is a significant responsibility. Guardians named in a will also have the right to turn down the duty.

It is also important to discuss your decision with anyone else with an interest in your children’s welfare as they could potentially challenge your choice of guardian. If a case like this comes to court, the child’s welfare and wellbeing will be considered and a decision will be made – this can be a very unpleasant process at a time that is already distressing.

If you have stepchildren and wish to deal with their guardianship, we advise you to visit a solicitor as the situation can cause complications and depends on their legal relationship with you.

I have separated from my partner... do I need a new will?

Unless you want your estate to pass to the person from whom you are separated, a new will is the only way to ensure your wishes are fulfilled. Here are two examples:

Without a will:

Jack and Diane have been married for five years and have two children. Diane leaves Jack and the children and moves in with Terry. Jack has not yet started divorce proceedings when he dies without a legally valid last will and testament.

Diane would still be first in line to inherit Jack’s money and property according to intestacy laws. Jack could have prevented this by writing and executing a will.

With an out-of-date will:

Andy and Mark wrote mirror wills leaving everything to each other after entering a civil partnership. They have since separated and are living with other partners but have not re-written or revoked their wills.

Until the civil partnership is officially dissolved, the wills are still valid: Andy’s possessions would go to Mark and vice versa.

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Divorce or dissolution of civil partnership does not automatically revoke your will like getting married does. If you divorce or dissolve your civil partnership after your will is made, any reference to your former spouse or civil partner will be treated as if he or she had died on the day that the decree absolute or final dissolution order was made. You should seek legal advice in those circumstances.

It is important to update your will or create a new will whenever your circumstances chance, for example getting married or entering a civil partnership, getting divorced or dissolving a civil partnership, or when you have children.

Do married couples need two wills?

Married couples should have two wills to ensure that each individual’s wishes are fulfilled.

For example, if you personally own a watch that you would like your son or daughter to inherit, that should be covered by your individual will. In some cases, one spouse may not want the other to inherit a property in which the couple lives but is owned by an individual.

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A will is a personal thing but if both partners have identical wishes, a mirror will is an option. In a mirror will, the content of both wills is nearly identical, except for the name of the testator.

I am getting married, do I need a will?

Making a will may not be the first thing you think of when planning your wedding, but you should be aware that your legal status changes upon marriage.

Importantly, any former will is automatically revoked (cancelled) unless it specifically states otherwise. This means that your estate will be divided according to the government’s intestacy rules and not according to your wishes.

It is important to update your will or create a new will whenever your circumstances change, for example getting married or entering a civil partnership, getting divorced or dissolving a civil partnership, or when you have children.

Wills and stepchildren

The legal status of stepchildren in your will
Unless you have legally adopted your step children, they have no automatic right to inherit under the laws of intestacy. The only way to ensure that they will be provided for in the event of your death is to name them as beneficiaries in your will.

Using our online will writing service, you can determine exactly who you want your possessions to pass to in the event of your death. Without a valid last will and testament, your estate will be divided according to the laws of intestacy. It is in these circumstances that stepchildren can be left unprotected.

If you have stepchildren and wish for them to be provided for in the same way as your biological children, you must do so with a last will and testament. Without a will, they have less claim to your estate than, for example, an illegitimate child who can prove a blood relationship to you.

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This material is for general information only and does not constitute tax, legal or any other form of advice. You should not rely on any information contained herein to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation. A to Z Wills Limited is a member of the Society of Will Writers. It is not regulated by the Solicitor's Regulation Authority.