FAQs Archive - ILaws Scotland

Q: Im Still Married, but Separated. Do I Need to Include My Spouse on My Current Will?

No, you are allowed to leave your estate to whoever you wish. However, despite being separated, your spouse could make a claim on your estate under the Inheritance Act. Such claims made against an estate take time and are often costly. It’s important to prepare a Will which gives your executors room to negotiate with your spouse, if necessary, to protect the interests of your other beneficiaries. If you have recently divorced, or are in the process of going through a divorce, its important you review your will documents and other legal documents that you may have in place, such as Power of Attorney – as you may need to change your appointed attorney. In fact, any life event that occurs, you should be reviewing these documents. Get in touch with the expert Estate Planners today at ILAWSSCOTLAND and get the best advice on your circumstances.

Q: Does a Financial Settlement Order Help?

A financial settlement order, also known as a clean break settlement means that the parties to the divorce will have no financial ties once the court order is made and implemented. A clean break order will not include any spousal maintenance. It enables both parties to move forward and be financially independent of one another. Clean break orders can be useful to help protect your estate against future claims under the Inheritance Act, but they won’t suit every situation – especially not if there’s young children involved who still need to be provided for. It’s still important to review your Will and ensure it is up to date, ensuring your estate is still going to be divided the way you want it, after your death.

Q: Does My Ex-Partner Have Any Claim on My Estate?

This all depends on the terms of your divorce and your financial settlement however an ex-spouse can make a claim on the estate if they can show that they were being financially maintained by the deceased. An example of financially maintaining your ex-partner after you’ve divorced would be paying them maintenance. If you don’t include them on your Will, they could potentially make a claim under the Inheritance Act. If you don’t want your former spouse or civil partner to benefit from your estate after your death, unfortunately there is no certain way to prevent it. The best thing to do is ensure your executors are prepared in the event there is a challenge, and speak to our experienced estate planners to write your Will in a way that provides flexibility to negotiate with your ex-partner if necessary to protect the interests of your other beneficiaries.

Q: What Happens If I Don’t Make a New Will After Divorce?

If your divorce is amicable and you and your ex-partner agree about how your property will be shared, this isn’t legally guaranteed, unless this is written in your Will. Making a new Will gives you the peace of mind that your loved ones will be provided for.

Q: Do I Require a New Will After Divorce?

Divorce doesn’t revoke a Will, nor does it mean a previous will (before marriage) will automatically come back into effect. Following the Succession (Scotland) Act 2016, it is now presumed that people do not want an ex-partner to benefit from their estate. However, unless you have another living Executor named in your Will, things can still become complicated, so it’s always worth updating your Will with a replacement Executor post-divorce. It is also sensible to review your Will after such life events anyway as your wishes may have changed.

Q: Does Setting Up a PPT Will Not Count as Deprivation of Assets?

The government and the local authority want to ensure they get the right amount of tax and care home fees from everyone. In cases where the Local Authority think you deliberately moved the interest in the assets to escape care home fees, they may apply to the court to transfer the property ownership to the spouse. Therefore they are set-up for family reasons rather than depravation. Whether this application is successful depends on when the transfer was made, especially if the trust was made when the health of the partner meant needing care was likely. The court will use its discretion to consider all the circumstances of the case. We would always advise against this type of trust if you or your partner were going into care imminently.

Q: What Happens with Inheritance Tax?

A PPT will not have any impact on inheritance tax below the nil rate band. Therefore there is also no 7-year rule affecting them. Once they are set-up they are fully active. The main inheritance tax allowance is £325,000 – this is called the ‘nil-rate band’. No inheritance tax is payable on assets you own at the time of your death up to this value. This rate will be in force until at least 5 April 2022. In addition, you have a ‘Residence Nil Rate Band’ (RNRB). This can be used where you give property in your Will to a direct descendant (for example, a child or grandchild). Currently, the RNRB is £175,000 (2020/21 tax year). Each person, therefore, has an allowance of up to £500,000 or £1M if you are a married couple on which they will pay no inheritance tax (depending on how much of the RNRB they are able to use).

Q: What Does the PPT Mean for the Surviving Spouse?

As the surviving spouse with PPT it is still very flexible and you can still move house or sell it completely should you wish. Your deceased’s half of the property will remain protected for their named beneficiaries. You cannot lose this to divorce, bankruptcy or care fees.