By Adele Bebbington-Plant, Head of Wills, Trusts & Estates

Would you let your ex:
Decide how much to sell your house for and to whom?

Control when and how your money is given to your children? 

Manage the proceeds of your life insurance?

In short, would you want your ex to be the person who deals with the administration of your estate if you died?

For many divorced or separated couples, the answer is a definitive NO and their ex is the last person they would want dealing with their affairs. However, if you have not made or updated your Will, then your ex could be the person the court appoints as your personal representative on your death.

But we are divorced…
If you are divorced and have not made a will, the intestacy rules apply. Your children inherit under these rules if you do not have a spouse or civil partner. If your children are under the age of 18, then the person with parental responsibility – usually your ex – is entitled to apply to the court to deal with your estate on behalf of your children. 

Even if you have made a will, it is important to know that it is not automatically revoked or cancelled on your divorce. Your ex will not inherit from your estate, but if your children are under 18, inherit under the terms of your will and your ex has parental responsibility, then they can apply to the court to deal with your estate on behalf of your children, if your will does not name somone else as executor.

This means that your ex will be responsible not only for managing all of your financial affairs on your death, but will also become a trustee and will manage any money or assets held on trust for your children until they reach 18. 

We were never married…
A similar situation can arise if you have never been married. If your children are under 18 and inherit under the intestacy rules, then your ex-partner can apply to the court to deal with the administration of your estate on behalf of your children if they have parental responsibility. Similarly, if children benefit under a will and no other person is appointed to deal with your estate, then an ex with parental responsibility can apply.  

Things can become even more complicated if you have children from more than one relationship and therefore different people with parental responsibility for the children who inherit.

Life insurance
In addition, you may also have life policies in place. Policies can fall inside or outside of your estate for administration. The proceeds of policies could also end up being managed by your ex where he or she has parental responsibility for minor children. 

What action should I take?

If you are divorced or separated and have children under the age of 18 it is vital that you have an up-to-date will. 

This ensures that:

You decide who is responsible for dealing with your estate and looking after any money or assets for your children until they reach adulthood.  

You appoint guardians to look after your children if your ex and anyone else with parental responsibility also dies.

You decide who inherits your estate and at what age you feel is appropriate – the general rule is 18, however you may want to delay this.

You should also:

Carefully review your life policies and take appropriate advice on them. We have in house independent financial advisers who can offer advice in connection with life policies.  

Ensure that you have a clear understanding of who has parental responsibility for your children. Where appropriate we can consult with our family department who can provide specialist advice on child related issues.  

We would be happy to offer a free half hour consultation to discuss any queries or concerns you may have, to arrange a consultation contact us on 01244 356 789 or email info@cullimoredutton.co.uk

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.