A person prepares a will to dictate how their estate will be divided in the event of their death. It contains names of the individuals who will receive what one owns, give specific directions on how one wishes to share their tangible provisions, among other assets. But what happens when one ends their marriage relationship and wants to divorce?
How Divorce Affects Your Will
Anyone getting married in Canada automatically gets their pre-existing will revoked. But when it comes to divorce, the will is not revoked. While this is true, there are factors one should consider to ensure they don’t have legal consequences for their state.
*The only way a will is not revoked after marriage is if the will was made with a statement referencing the upcoming marriage containing your spouse’s name. But if there was no such statement, you will is considered invalid.
To avoid all the havoc, one should revoke their will. It’s not straightforward to determine which law will apply to a certain province or territory concerning the will. So it’s recommended that one find the best family lawyer in Toronto to guide them on how to go about the issue. If you are to divorce, your will is affected in the below ways:
- After divorce, what happens is that if you have allocated any gift to your spouse, the gift takes effect as if the spouse died on the date the decree became absolute.
- If you had chosen your spouse to act as a trustee of a trust for your child, your spouse might still be responsible for your child’s trust fund.
- If you had indicated your ex-spouse as a trustee or executor, you could change the provision that indicated they are to receive any gift. But if the will never named your ex-spouse as an executor, the probate court has the power to appoint one. If an executor, they may be automatically be written out of the will. Meaning those gifts can go to another person. But suppose you included your spouse as a beneficiary. In that case, you will have to take the necessary steps to remove your ex as a beneficiary or any other way to prevent them from getting your assets. Take note that it would be beneficial to seek probate advice from a legal expert to ensure your assets are distributed according to your wishes
Can I Make A New Will After Separation Or Divorce?
Even if your will is not to be revoked after divorce, you can choose to update your will after you separation or divorce, reflecting what you need to change. In most cases, when divorce is finalized, it happens that provisions of your will may not be carried out; your new will may incorporate this. For instance, the court may have ordered you to hand over your house as part of your financial settlement.
The fact is that if you owned some joint assets, the interest accrued would still go to the person indicated not unless you act on the issue. One way to address such a problem would be to convert the ownership such that the share may be given to anyone you wish. You should also make sure to change your will concerning the bank statements.
If you don’t change your existing will or makes a new one, you will not be sure how your estate will be divided. This is even if you have an uncontested divorce. You can only be sure about your will if you make changes.
Whether your ex-spouse will have a claim on your estate will depend on your divorce terms or your financial settlement. Meaning, if you were the breadwinner who supported your spouse, your ex-spouse could still claim your estate. Your ex may still claim under the Inheritance law in Canada, even after paying alimony. To avoid such, you can make sure your will is written so that there is flexibility on how executors will deal with your ex-spouse while protecting your beneficiaries’ interest.
Getting Legal Help
After separation or divorce, it’s more likely that your ex will no longer take your property or assets. Thus, it’s vital to ensure that you review your will early enough to avoid any hitch back. You can choose to remove references to your spouse and make new changes. If you have issues with your ex about the will and what he/she is to inherit, it would be better to speak to an experienced probate lawyer who can advise on how to settle things without going to court. Your lawyer can help you come up with a financial settlement order that ensures no one has financial ties to the other after divorce. But this can only apply if there are no children who need support or your ex-spouse has the potential to be financially self-supportive after divorce. To ensure you will have the right information about your estate division after divorce, it’s better to have it updated or you can create a new will.
