The last thing you probably want to do when your divorce is final is to think about other legal issues that might be important for your future. However, it makes good sense to consider your situation with regard to your estate plan – maybe you haven’t started the process or maybe you have a will or trust that is a decade old. In either case, post-divorce is an important time to either get the ball rolling or update an antiquated document that may no longer make sense for you or your children. Below are some essential items to address when looking at your estate plan:
Look at your designated durable power of attorney & consider a change.
Whoever has the power of attorney, on your behalf, should be someone whom you trust. This person has decision making authority with respect to your finances and property – while you are still alive. There is typically a springing event, such as your mental incapacity, which allows your person or “agent” the ability to make such decisions on your behalf. You may have the same person or someone else serve as your durable health care power of attorney. This person should also be someone you greatly trust because he or she has the ability to make life or death healthcare decisions. Most people do not want a former spouse or partner to hold such power either with regard to finances or healthcare.
Is your ex or soon to be ex-spouse your executor or personal representative?
The duty of your PR or executor is to protect your assets and carry out your wishes after you are deceased. This involves paying your bills, selling your personal and real property, and generally handling your investments in accordance with the desires you have conveyed in your will. Again, this person should be someone you trust immensely. After a divorce or separation, you should consider what you have planned for in your current will or if you are beginning the planning process, be sure to give someone this authority who knows your intentions and wishes.
Look at who you have designated as the payable on death beneficiary of your life insurance, retirement plans and investment accounts.
It is not uncommon for people to change their will but neglect to consider their payable on death assets. Your will does not govern such assets. You could end up with unintended consequences if you fail to change your beneficiaries of these accounts. Oftentimes, these accounts constitute the largest assets in estates. To avoid mistakes or even possible litigation, make sure you are making the appropriate changes to these assets as well.
Who is the guardian & alternate guardian of your minor children?
Likely your ex-spouse will remain the guardian, however you should have an alternate in case he/she is somehow incapacitated or deceased. Don’t take this decision lightly as this all-important person may be responsible for your children’s care, maintenance, education, and overall support.
Look into your trust arrangements.
Specifically, what plans have you made for designating someone to be in charge of managing assets/monies for your children while they are minors? Maybe now is the time to reconsider the designated trustee of your trust. If not, your ex-spouse will likely be the one with access and control of the assets/monies for your children.
Consider any pre or post nuptial agreements you might have made when addressing estate planning.
In such documents, you may have indicated what your spouse is entitled to in the event of your death… you will want this document to align with the new plans you make. Inconsistencies that create confusion could result in unintended conflict and litigation.
At McGill Law, we have your best interests in mind for any and all major life events you might be experiencing. Give us a call to discuss changes to existing estate plans or to create new plans that will protect you and your children for many years to come.