Going through a divorce is considered one of the most stressful events a person can experience. From dissolving a relationship to splitting possessions to finding the strength to move forward, ending a marriage is taxing.
Even with the complexities and frustrations associated with divorce, there is nothing more disquieting than an incomplete or erroneous estate plan at the end of your life. Having no or the wrong estate plan after a divorce means having no control over your estate. In some extreme circumstances, your estate could be left in the completely wrong hands and not be treated with the respect it deserves.
That is why it is vital to revisit your Orange County estate planning lawyer after a divorce to ensure your estate is handled appropriately and adequately.
Here are the main elements of your estate plan that you need to create or update after a divorce:
Create a New Will
While it might seem like a good idea to edit or update your will, the best step is actually to start over. Start by revoking your old will. The easiest way to do this is to literally tear up the past will. Merely trying to edit a will can result in small mistakes that can change the meaning of your wishes. Instead of trying to catch every little thing that needs to be changed, it’s best just to start over. If you didn’t have a will before your divorce, now is a perfect time to write one.
Name New Beneficiaries
Your will is a legal document where you can leave pieces of your property to individuals of your choice. You can leave everything to one person, spread items among multiple people, or even give to charity. Most of the time, married couples simply leave everything to the surviving spouse. Post-divorce, you’ll probably want to make different decisions about your property.
Take some time to name new beneficiaries. Keep in mind that some state laws revoke gifts to your former spouse named in the will. This provision helps in case you don’t update your will in time, but it isn’t foolproof. Every Orange County estate lawyer knows how quickly laws can change. Instead of taking the chance that your ex-spouse ends up with your property, create a new will with new beneficiaries.
Name a New Executor
Your will is also where you’ll name an executor of your estate. This is the person who will follow your instructions and wrap up your estate when the time comes. The chances are that if you don’t want your ex to be your primary beneficiary, you don’t want him or her to be in charge of your estate. State laws might allow an ex to remain your executor after a divorce, which is why you’ll want to make sure you name a new person to handle the job.
In the case that no one is named, a state court will make decisions about your estate and passing on your property.
Guardians and Trusts for Your Children
Finally, your will is where you name guardians for any minor children you have before your death. Most courts will give the surviving parent full custody of children after one parent dies. Naming a guardian in your will does not change this fact. If something were to happen to both you and your ex-spouse, you still want someone to take care of your children. If there are things to consider regarding who gets custody, you can write this into your will for the judge to ponder.
When discussing how to handle naming a new guardian for your children with your estate planning attorney in Orange County, you may also want to consider creating a trust. While there are various types of trusts, the critical thing to know is that trusts can help protect assets and property, so they are passed on to your children.
If you leave property to a family member, friend, or your ex-spouse with the understanding that your kids will get it later on, there is no guarantee that these plans will be followed. Essentially, once that property is passed on, the new owner can do as they want with it. That also means if someone happens to the new owner, they will decide what happens to the property. To avoid confusion and unintended results, your Orange County estate planning attorney can help you set up the appropriate trust.
Read More: Creating an Estate Planning Checklist
Double Check Non-Will Beneficiaries
While your will is one of the critical elements of your estate plan, there are many things that pass around the will. You’ll want to update or change the beneficiaries for your life insurance policies, retirement accounts, pay-on-death bank accounts, and transfer-on-death brokerage accounts, as applicable. You most likely named your spouse as the beneficiary of these funds. After the divorce, you may want to put these funds into a trust for your children or donate them to charity.
You don’t want to rely on state law to revoke your ex-spouse’s right to these funds. A divorce decree might block your ex from getting this money, but it’s not a sure thing. Some policies are governed by federal law that can supersede state laws. Luckily, changing the beneficiary of these accounts is relatively easy. You’ll need to contact the bank or account holder to determine the exact instructions, but you will find making the change is usually pretty straight forward.
Update Your Powers of Attorney
Your powers of attorney (POAs) give someone else the authority to act upon legal matters on your behalf. Typically, your estate planning attorney will help you set up two: a POA for healthcare and one for financial matters, although this can often be the same person.
You may not want your former spouse to make financial or healthcare decisions on your behalf after a divorce. Select people you trust to help make these decisions for situations when you can’t speak for yourself. While you’d like to think, if your POAs go unchanged, that your ex-spouse will still keep your best interests in mind, but it’s better to be sure you’re in good hands than just hoping for the best.
Don’t Go It Alone
Regardless of whether you worked with an Orange County estate planning attorney to create your first will or not, you’ll definitely want professional help after a divorce. Understanding how state and federal laws are impacted by marriage is no easy task. Instead of carrying uncertainty with you about your property, assets, and children, set up a meeting with an estate planning lawyer to discuss options.