Updating Your Will and Estate Plan After Divorce
Navigating a divorce is already a challenging endeavor, and updating your estate planning documents might be the last thing on your mind. However, revising these documents after or even during the divorce process is crucial for your protection. It is essential to ensure that your soon-to-be ex is not designated in your Will as the person responsible in case something happens to you. This becomes especially vital when critical medical and property decisions need to be made.
Revisiting your Will becomes imperative if your spouse is named as the executor or is set to inherit all your property upon your passing. You must maintain control over your life and assets, and updating your estate planning documents while navigating divorce is a significant step.
This article will outline the key estate planning documents to modify during divorce and explain the process for implementing these changes.
What is an Estate Plan?
Estate planning acts as a comprehensive roadmap outlining your preferences in the event of your dying or if you become unable to make decisions for yourself. An estate plan is a collection of documents that typically includes a last will and testament, a healthcare power of attorney, and a financial power of attorney. Understanding the importance of each document helps you determine whether updates are necessary due to the changes brought about by your divorce.
Last Will and Testament
A last will and testament is a legal document that allows you to dictate how you would like your possessions and assets to be distributed and who you would like to take care of your children or pets. Note that this is not to be compared with a living will, a legal document that outlines your medical care or end of life treatment preferences should you become terminally ill. A last will and testament typically names an executor who you would like to be responsible for carrying out or executing your last wishes based on the instructions of your will.
To understand both emotional and practical steps to take now that you’ve divorced, read “46 Steps to Your Divorce Recovery: A Definition and a Guide.”
It is common for individuals to initially designate their current spouse as the executor, presuming they will inherit assets upon their passing. However, if you wish for your ex-spouse to retain this role or desire to change the designated executor, updating your will is essential.
Clearly articulating your intentions, whether maintaining your ex-spouse as the executor despite the divorce or choosing a new executor, helps prevent confusion.
Choosing Wisely: Selecting an Executor and Updating Your Will with Confidence
Selecting a trusted individual for this role is vital, and open conversations are essential to ensure the chosen person is comfortable taking on the responsibility. Additionally, you may need to revise the designation for individuals responsible for caring for your children or pets. Discussing these matters with your Ex, family, and friends ensures that everyone is on the same page. Reassess your situation, determine what’s in your best interest, and update your will accordingly.
The simplest way to update your will is to create an entirely new document and explicitly revoke the old one.
This can be achieved by shredding the prior will and clearly stating in the new will that all previous versions are null and void. Alternatively, some states allow for codicils or addendums, separate documents used for making minor adjustments to wills. However, for significant changes, such as selecting a new executor or altering property distributions, drafting a new will is often recommended. It’s advisable to consult with an attorney to ensure the decision you make aligns with your best interest and those of your estate. Once the updated will is in place, signed by two witnesses, and notarized, make sure to provide copies to trusted individuals, such as executors or heirs listed in the document.
Power of Attorneys
There are two distinct types of power of attorneys:
- A healthcare power of attorney
- A financial power of attorney.
A healthcare power of attorney is a legal document that designates someone to make healthcare decisions on your behalf when you are unable to do so independently. These decisions may involve choices regarding medical care facilities and consenting or refusing specific medical treatments.
Read “Divorce for Women: Why It’s Different.”
On the other hand, a financial power of attorney appoints an individual to manage your financial affairs and property. This may include tasks such as handling bank transactions, paying bills, or managing insurance benefits.
It’s important to note that powers of attorney do not impact your will, and they typically terminate immediately upon your death.
Empowering Your Future: Selecting Trustworthy Agents for Power of Attorney
Regularly updating your powers of attorney is crucial since they can come into effect at any point if you become incapacitated and are unable to make decisions independently. This scenario could be triggered by events such as a severe coma, advanced dementia, or any condition rendering you incompetent to make meaningful decisions regarding your healthcare.
When selecting an agent for your powers of attorney, choose someone you trust implicitly. If your Ex is the person you want to serve as your agent, ensure your documents clearly reflect this decision to avoid confusion. Alternatively, if you prefer someone else to act as your agent, appoint a trustworthy individual—whether a parent, child, sibling, or close friend—with your best interests in mind.
For more exciting steps to take, consider “100 Must-Do’s for the Newly Divorced Independent Woman.”
Consider appointing a successor agent as a backup in case your initial choice is unable or unwilling to serve.
Keep your financial power of attorney in a secure location, informing your agent of its whereabouts and how they can access it. Provide copies of your healthcare power of attorney to both your medical provider and any listed agents. It’s imperative to protect both documents and ensure that someone you trust is aware of their location. These precautions help guarantee that your wishes are honored and decisions that align with your preferences are made in the event of your incapacitation.
Other Estate Planning Documents
Your Ex may currently be designated as the beneficiary on your retirement accounts, bank accounts, or life insurance policy. Divorce does not automatically alter a beneficiary designation unless specified in your divorce judgment or decree.
Given that retirement accounts are considered marital property and typically divided during divorce proceedings, it is recommended that you consult with an estate or family law attorney to understand when and how you can modify other beneficiary designations like your bank accounts and life insurance policies. Hiring a financial advisor may also be beneficial to guarantee that all your options are explored. Taking these steps helps to ensure that, in the unfortunate event of your passing, insurance proceeds and remaining funds are directed to the intended recipient.
Conclusion
Updating your estate planning documents is pivotal for retaining control over your assets even after your passing. Whether you choose your ex-spouse to remain as your selected agent, executor, or beneficiary, updating your documents will eliminate any potential confusion. Despite the desire to move past a divorce, prioritizing an up-to-date estate plan will provide you and your heirs with ongoing protection.
While numerous legal documents contribute to an estate plan, the will and powers of attorney play important roles in dictating asset distribution, specifying caregivers for your children or pets, and designating individuals to manage your healthcare and property should you become incapacitated. Open communication with your ex-spouse, family, and friends is key, as they may be affected by your choices in your estate plan. Encourage your family members to review and update their estate plans, if necessary, especially if your Ex is listed as a beneficiary or agent.
When selecting an agent or executor, engage in thoughtful conversations to confirm their willingness to serve in this role. Effective communication ensures that your intentions are well-understood, providing you with control and certainty to protect your best interests in all circumstances. Take charge, and let your updated will stand as a testament to your resilience and foresight. By navigating these critical decisions and communicating your wishes, you empower yourself to shape a future that aligns with your values and protects what matters most.
NOTES
Teresa is a third-year law student in Chicago committed to advocating and supporting survivors of gender and power-based violence. With a longstanding interest in family law, she aspires to pursue a career in this field after graduation. Her goal is to create a meaningful impact by being a voice for those who may struggle to find their own, providing the necessary support and empowerment they need to navigate the legal system and achieve justice.
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