Updating Your Will After a Divorce
If you are experiencing a divorce, the last thing you are probably thinking about is your Last Will and Testament (will). However, if you created a will with your ex-spouse, the decisions you made may no longer apply. You may not currently own some of the property mentioned in the will, and you may not want your ex-spouse to inherit your assets. As you start to review the provisions you made in your will, there are additional legal consequences you should consider when updating your will after a divorce. Visiting with an experienced estate planning attorney at Kushner Legal at (310) 279-5166 can help ensure that your legal and financial rights are protected during this difficult time.
Revoke Your Will and Execute a New One
Since you will probably have substantial changes that need to be made to your will, it would be wise to completely revoke the old will and create a new one. You can actually shred, tear, or destroy your old will, and that will make the old will invalid. You can also clearly state in the new will that you are hereby revoking all previous wills. The new Last Will and Testament you create can follow your current wishes, including who you choose as beneficiaries and guardian for your minor children. If your parents are living, they may also have included your ex-spouse in a living trust, or in their Last Will and Testament. Review their legal documents with them, to make sure their wishes are correctly represented.
Designate Beneficiaries – You should not plan on state law to carry out your desire to have your children inherit your property instead of your ex-spouse, especially if he or she is listed in a previous will that has not been replaced. It is best to draft a new will that names new beneficiaries, along with alternate beneficiaries who will inherit your assets when you die. In addition to your Last Will and Testament, you should review other legal documents, such as bank and financial accounts, life insurance policies, motor vehicles, and real estate documents, which also list beneficiaries. It is important to examine all legal documents where you listed beneficiaries, so you can make changes according to your wishes.
Name a Guardian – Your Last Will and Testament likely establishes a legal guardian for your minor children. It is not uncommon for your ex-spouse to gain full custody rights under the law at the time of your death. However, if your ex-spouse has also passed away, or under other specific circumstances, you can name another legal guardian for your children in your new Last Will and Testament, preventing your ex-spouse from obtaining full custody.
Choose a New Executor – Another reason to revoke your previous will is to name a new executor if your ex-spouse was listed previously as the executor. The executor of an estate is the personal representative for the person who has died, and this person represents the estate. You likely would not wish your ex-spouse to be listed as a beneficiary or the executor of your estate.
Consider Establishing a Living Trust
A trust can shelter the home property from creditors or a future spouse, and is an effective legal tool to ensure that your children are financially cared for after your death. If you have experienced a divorce, a living trust can work in conjunction with a will to ensure that your ex-spouse does not receive your property or assets after your death.
Consider Changing Documents Regarding Power of Attorney – There are two types of power of attorney, financial and health care.
Financial Power of Attorney – You may have previously appointed your ex-spouse as your financial power of attorney, allowing him or her to sell a property for you, or remove funds from a bank account. This should be revoked immediately, and a copy delivered to all financial institutions to ensure the protection of your assets. This can be accomplished even during a pending divorce, and if necessary, you may appoint a new financial power of attorney as a legal agent in your financial affairs.
Health Care Power of Attorney – A health care power of attorney is also called an advanced directive, patient advocate, or health care surrogate. In tragic health situations, a person that has health care power of attorney can make medical treatment decisions on your behalf. You may no longer wish your ex-spouse to make serious health-related, or life and death decisions, on your behalf. The old power of attorney should be revoked immediately, and these changes can be made even as the divorce is in process. All of your health care providers should be notified of the change.
Contact an Experienced Estates and Trusts Attorney
Sometimes divorced couples remain friends, and choose to keep their legal documents the same after a divorce. In most circumstances, however, a person who has experienced a divorce will want to review and change all legal documents to properly reflect their new wishes.
Failure to make changes could keep your ex-spouse as the beneficiary of all your assets and responsible for your health decisions. Contacting an experienced attorney who specializes in estates and trusts can help you sort through your options and represent your intentions regarding your estate. Call our dedicated estate planning attorneys today at (310) 279-5166 for a free consultation.
Lars Kushner is an experienced attorney in estate planning and litigation strategy. He works directly with you on an individual basis to ensure your needs are met.