PROTECTING YOUR ESTATE DURING DIVORCE

Going through divorce may be one of the most challenging and stressful ordeals you will experience. There are numerous questions you have to answer, a slew of documents you have to dig up, and brings an incredible amount of emotional turmoil. While you may be ready to forget your ex-spouse completely, do not forget to change your estate plan.  If you have a previous plan, you likely named your ex-spouse as the successor trustee, executor, power of attorney, and/or beneficiary. It is very unlikely that you will want to leave your ex-spouse in that role, making it vital to change your estate plan.

In a revocable trust, the trustor or trustee, not the beneficiary, has control over when and if the benefits are distributed. However, when you die, whomever you named as executor of your will or successor trustee of your trust will have control over when and if the benefits are distributed. It is likely that you would designate your spouse as executor and successor trustee during marriage, so it will be important to have a new estate plan done, in order to designate a new person to fill these rolls. It is your decision who will fill the roles. Your executor or trustee does not need any special training, but must be an organized, prudent, responsible, and honest person. Additionally, you will want to consider who is named as beneficiary on any retirement accounts, life insurance, or additional benefits. If you had named your spouse, you would want to give your estate attorney at least one new person who would be a beneficiary.

While most assets are subject to your estate plan at death, there are some exceptions. These exceptions include life insurance policies, IRAs, and other tax-deferred retirement plans. These are distributed according to beneficiary designations, which override the designation in your will or trust. It is important to update beneficiary designations right after the divorce, if you choose not to during the process, as just updating your estate plan will not affect who gets the benefits of these plans.

Further, if your ex is your agent on your durable power of attorney for property, you should consider changing his/her name immediately to prevent your ex from having unlimited access to bank accounts or financial assets. Additionally, you should name another person as your agent to make health care decisions for you if you are unable to make your own decisions. It is important to also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you.  You may choose to limit the authority of your agent, but if you choose not to limit his/her authority, they may, but are not limited to, consent or refuse care, treatment, or procedures, agree to tests, surgery, and medication, and designate anatomical gifts. Who you choose to make these decisions should be someone you believe understands and will respect your wishes.

Finally, you may also be wondering how to provide for your minor children in the event of your death, if your ex has no custody rights over them. You should nominate a guardian to supervise and care for your child until he/she is 18 years old. Under California law, a minor child would not be legally qualified to care for him/herself, or to manage his/her own property. You can make the designation in your estate plan.

If you are seeking information or counsel regarding estate planning or protecting your property during divorce, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri – we offer free half-hour consultations. We also offer free wills to all of our family law clients during the process of their divorce.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.