Besides the emotional impact that divorce can have on people, it also has an obvious impact on estate planning. Couples who are contemplating a divorce should review their estate plan to determine the changes that will be necessary once a divorce is final and should keep in mind that it is only final once a judge signs the final dissolution decree. Once a divorce is final, you may be required to keep your ex-spouse as a beneficiary on a life insurance policy; your ex may also be entitled to a portion of any retirement benefits that were accumulated while you were married.
Here are some of the things you should consider in your estate plan if a divorce is pending:
• Wills – if neither spouse has a will, nor one dies prior to the finalization of a divorce, the assets will go to the surviving spouse. If you do have a will, chances are your spouse is named as executor and primary beneficiary.
• Trusts – spouses typically name each other as the executor and sole or primary beneficiary of the estate in trust documents. If you have established a living trust – which many people do to avoid the expense and delay of probate – it will be very important to change your living trust after the divorce is final.
• Life Insurance Policy – if a couple has children, chances are that the surviving spouse is named as primary beneficiary and the children as secondary beneficiaries; there may also be step-children that one spouse has brought to the marriage that are listed as well.
• Retirement Accounts – beneficiary designations on IRAs and other retirement accounts are usually a spouse; if these are not changed after a divorce is final and the account holder dies, the assets still go to the person named as beneficiary.
• Powers of Attorney – if you have an estate plan in place, your spouse may have a Durable Power of Attorney so they can handle your affairs in case of your death or incapacitation. If you have named your spouse in a Health Care Power of Attorney, they will have the power to make your healthcare decisions.
• Other Estates – you or your spouse may be named as a beneficiary of your parents’ or other relatives’ estate. If you inherit before the divorce, the assets will likely be considered when calculating spousal support.
For most people, there are four main estate planning issues that are of concern during a divorce:
• How assets are divided now, and how they will be distributed after death
• Re-designation of beneficiaries
• Taking advantage of every possible tax break
• Control and management of certain assets
A Will can be used, when executed, directs the disposition of your estate at death. The term “Intestacy” deals with state statutes that govern distribution of the property of a person who dies without a valid will or whose will does not completely dispose of his estate. In most states, the rules are the same for real and personal property. Heirs and next of kin are synonymous and describe persons who take either real or personal property by intestacy. Generally, the state where a person lives when death occurs determines the disposition of personal property. The disposition of real property is determined by the law of the state where the real property is located.
Intestacy statutes (or wills) apply only to a decedent’s probate estate. This consists of assets that pass by will or inheritance and are subject to administration by the decedent’s personal representative, (cash, real estate, and personal items). Non-probate assets pass under contract, (life insurance proceeds, trust assets, etc.). If a will is valid than it rules, but if there was no will or the will was not valid or does not make a complete disposition of the decedent’s property, than the intestacy succession statute applies. Again for personal property, remember the law of the decedent’s state where they lived governs. For real property, the law of the state where the property is located governs.
Some general rules are as follows:
• Spouse usually takes half or a third if there are decedents, if not, all distribution of assets goes to the spouse
• Children take all if there is no surviving spouse or a smaller amount if there is a surviving spouse.
These rules apply to “separate property”. Different rules apply to community property. Keep in mind if your state is a community property state, the spouse already owns on half of all community property.
Property owned by a spouse before marriage or properly acquired during marriage, by donations or inheritance. In Arizona, California, Nevada, New Mexico and Washington the income from separate property is separate. In Idaho, Louisiana and Texas, the income from separate property is community property.
All property acquired during marriage that is not separate property. Under this rule, “all property upon divorce or death is presumed community property. The burden of establishing that a particular asset is separate property is on the party so contesting.
Quasi-Community Property Statue:
Property acquired by one spouse while living in another state. Idaho and California have Quasi Community Statutes. In effect, the acquiring spouse has the power to dispose of property acquired outside the state of residence, but may only dispose of one half of the interest in the property. The other half passes to the surviving spouse. Under the Quasi Community Statute, if there is no will the property passes to the surviving spouse. There are other states that have the Quasi Community Statute that applies to divorce, but not to the death of a spouse. Texas, and Arizona are two of those states that apply the statute to divorce cases.
Inheritance Rights of Children:
1. Adopted Children: They become the child of the adopted parent, and in most cases lose the right to inherit from the natural parents
2. Children born out of wedlock: Inherit from the mother and her kin, but need paternal proof to inherit from the father.
3. Step Children: May not inherit from the step-parents absent certain circumstances.
4. Grandchildren: May inherit only if they are the only surviving decedent.
What Constitutes A Will:
A will is an instrument executed in accordance with certain formalities that directs the disposition of a person’s property at death. It acts as a transfer of title of real and personal property. It only is effective upon death of the maker and is sometimes referred to an ambulatory document. It has no operative effect during the maker’s lifetime. It is fully revocable or amended at any time.
Formal Requirements of a Will:
1. Is the will in writing
2. Executed with testamentary intent (intent and wording of the maker at the time of execution.
3. Intent to dispose of property
4. Disposition to occur only upon death of the maker
5. Did the maker have capacity to make the will
6. That the will was executed free of fraud, duress, and undo influence.
7. Have all the state statutory requirements been met?
8. Was the will duly executed and witnessed.
Revoking a Will:
1. By law- Changes in a will may revoke all or part depending on state law
2. By executing another will, revoking the previous one
3. Physical destruction: tearing up, burning or writing “Cancel across the face of the will.
In most cases a complete, formally executed will do not need other documents or act to administer the to the decedents estate. There are grounds for contesting or challenging a will and usually involve the following:
1. Was the will properly executed?
2. Was it revoked?
3. Did the maker lack the capacity?
4. Was there lack of intent?
5. Was there undue influence, fraud or duress?
A person may contest or challenge a will only if they are interested parties, (direst interest in the estate). There can be a no-contest clause in a will, called an “Interrorem”. This provides that any person who contests the will shall forfeit all interest in the estate.
Steps in Administration of the Estate:
• Opening estate proceedings
• All proceedings subject to court supervision and control
• Jurisdiction-State of decedent’s death
Acquiring Estate Planning Services From An Attorney
Because the probate process is compulsory within the United States regions, the estate planning services are sought to help those who wish to ditch the procedure. With the help of an attorney, individuals can actually skip the probate law and inherit their bequeathed assets to their heirs. Most of the people have claimed that the probate system is too length and may prolonged up to months before the rightful heirs can receive the inheritance. Although some cases can avoid undergoing probate, it is only reserved to those having estates value exceeding US$100,000.
As such, for individual whose estates values not higher than US$100,000 they will seek the service of an estate planning attorney to help avoid the probate through the implementation of several strategies. The strategies may encompass items like assigning payable-on-death beneficiaries and transfer-on-death beneficiaries to checking and saving bank accounts as well as insurance policies. You see, if everything goes according to the law, it requires probably six to nine months for the probate duration if the decedents died without testifying a will. The duration may be longer if problems occur in any of those: court caseload, type of property, estate value and how well the family members get along. Besides, the estate planning attorney can be particularly helpful when there are family’s disputes are taking case. This is a rather pathetic fact that most of the time; death causes discord to exist in a family. It has been a common endeavor that heirs come in disagreement with what their folks left for them. They cannot attain concord in harmony disregard of who becomes the recipient of the property and family heirlooms. Due to rage and dissatisfaction, the heirs often contest the will through court thus prolong the probate duration. Due to the knowledge that their heirs have strong unwillingness to compromise, estate planning services are often sought to avoid such problems. With the attorney handling all the assets upon the death of the descendant, the likeliness for heirs to contest the testament is much lower.
The attorney will act as a neutral partaker between two conflicting parties to reduce the strife and get a conciliation done between them.
Duties of the Estate Planning and Administration Paralegal In Hurricane Utah
The general duties of a legal assistant in estate planning and administration in Hurricane Utah involve the gathering and recording of financial information for use by the attorney in his advisory function in estate planning and his guidance in the administration of a decedent’s estate.
Examples of the types of matters handled by an estate planning paralegal would be:
• Interviewing the client for information after the client’s initial interview with the attorney; gathering facts; and assembling assets in preparation for drafting a will;
• Drafting the initial inventory of assets and appraisal documents;
• Researching the federal tax laws and their ramifications for possible application in the estate planning process;
• Preparing memorandum regarding the estate planning for the attorney;
• Drafting initial trust agreements;
• Reviewing and updating wills to keep abreast of the changes to the law and/or the status of the client;
Examples of the types of matters handled by a paralegal for administration of a decedent’s estate would be:
• Interviewing the client for information after the client’s initial interview with the attorney; gathering facts; and assembling assets in preparation for the probate of a will or intestate (without a will) administration of a deceased client’s estate;
• Gathering a list of assets and preparing a court inventory;
• Developing financial data required for the completion of the appropriate state and federal tax returns;
• Initiating administration of an estate; preparing court documents and preparing filing and noticing procedures necessary for obtaining an appointment to administer to a decedent’s estate;
• Accumulating marketing, acquiring, listing and inventory of the assets of the estate; and
• Preparing interim and final accounting documents; prepare petitions for sale or distribution; preparing court petitions and following discharge of executor or administrator or trustee in case of a trust.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506