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Estates And Trusts Attorney: Updating Your Will After A Divorce

18 August 2020 by Jared Matthews

If you've recently gone through a divorce, you need to be prepared to restart your life. This is particularly true when it comes to estate planning and trusts. Fortunately, an estates and trusts attorney can help you redraft critical documents like wills and end-of-life plans.

Last Will and Testament

Your last will and testament stipulates how you want your assets to be allocated and how you want your post-life affairs to be dealt with. If you drafted this document while you were married,  it might not be legally valid and/or reflect your true post-divorce intentions.

1. Executor: One of the most important aspects of a last will and testament is appointing an executor. While you were married, you likely appointed your spouse to serve this function. After your divorce, however, your ex-spouse might be legally barred from serving this function and/or you might want just about anyone else to be your executor. Most estates and trusts attorneys encourage their clients to completely tear up their original last will and testament. Any attempt to revise a previous last will and testament will likely involve striking so many clauses from the original document that it will render it a legal Frankenstein. When choosing a new executor, you should strongly consider choosing a legal expert. This will ensure that the executor is objective and understands the legal nuances of your last will and testament.
2. Beneficiaries: In addition to appointing a new executor, you'll need to review your beneficiaries. In some states, ex-spouses are barred from being the primary beneficiaries of an estate or trust. If your new beneficiaries involve children, step-children, and/or a new spouse, you'll need a lawyer to help you divide your assets fairly. Failing to re-draft your last will and testament after a divorce can create a legal roadblock that can drain your estate and withhold assets for years. Setting up trusts for a primary beneficiary who might be a minor (under eighteen) when you're creating your last will and testament can create legal challenges. In these cases, an estate and trusts attorney can create a last will and testament that evolves over time. This can put assets in a trust if your beneficiaries are minors when you pass or liquidate the assets when you pass if your beneficiaries are adults when your last will and testament is executed.

End-of-Life Planning

In addition to portioning your assets, your last will and testament should provide end-of-life planning. This includes the power of attorney and funeral arrangements.

1. Power of Attorney (POA): Appointing a POA is critical when it comes to end-of-life planning. If your ex-spouse was appointed your POA, you'll need to amend your end-of-life planning (even if you want your ex-spouse to remain your POA). In most states, a divorce automatically nullifies POA status for ex-spouses and can render your end-of-life plan nebulous at best. When choosing a POA, consider choosing someone who is likely to outlive you and who is not the primary beneficiary of your will. Separating the POA from your beneficiaries can avoid legal pitfalls when the will is executed.
2. Funeral Arrangements: From your service to your headstone to your funeral, you should spell out exactly how you want your remains to be handled after you've passed. If you purchased a joint funeral plot with your ex-spouse, you'll need to sort out what you'd like to have done with the plot. In some cases, this means buying out your ex-spouse or selling them the rights to the burial plot. Handling these delicate matters is sometimes best achieved through an estates and trusts lawyer. They can handle the legal and financial particulars to make sure your end-of-life planning is easily executed. 

For more information, contact an estates and trusts lawyer.

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