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Wills and Joint Ownership

If you are contemplating divorce proceedings we will ask you to consider making a Will or amending an existing Will right at the start because if you should die before the conclusion of the divorce, your surviving spouse could still inherit from you  -  and that may not be what you want.

 

When a husband and wife make Wills they usually do so on a ‘mirror’ basis which means that both parties express the same wishes and make the same, or very similar, legacies.  Often the husband will leave everything to his wife (and children) and the wife leaves everything to her husband (and children).  The two Wills essentially mirror each other. 

 

Even if a divorce petition has been served and a Court Order made, dealing with houses, pensions, income and other assets, the provisions of any existing Will remain valid until the grant of the Decree Absolute.  At that moment, gifts to your now ex-spouse will cease to have legal status – they will be revoked, along with any appointment as executor and guardian. 

 

Joint Ownership

 

Most husbands and wives own their family homes and other properties as 'joint tenants'.  This means that they both own all of the property, as if they were one person.  So if one of them dies, the survivor will automatically inherit the deceased’s share.  If in these circumstances you make a Will leaving your share in the home to somebody else, that legacy will be ineffective.

 

If that is not what you want, then one solution is to ‘sever’ the joint tenancy and convert it into a “tenancy in common”.  Where property is held in this way, each party owns a specific share, which can be passed on under the terms of his or her Will. 

 

It is important therefore, when considering divorce proceedings, to think about severing any joint tenancy.  This will enable both parties to make a Will leaving their respective shares of the property to other members of the family, such as children.

 

It is not necessary to obtain your spouse’s consent before severing a joint tenancy; a suitable notice can be served on the spouse and then lodged with HM Land Registry (if the property is registered) or with the Title Deeds (if the property is not).

 

 

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