Wills Old

Home / Blog / Archive by category "Wills Old"
What Happens To My Joint Trust If I Get Divorced?

What Happens To My Joint Trust If I Get Divorced?

 

 

What Happens To My Joint Trust If I Get A Divorce?

What Happens To My Joint Trust If I Get Divorced?

              Going through a divorce can be an extremely painful, stressful and seemingly unending process.  It affects so many different aspects of your life.  This article discusses just one of the effects, which is your estate planning, including your living trust, will and power of attorney documents.

What happens to my estate plan when I get divorced?

This is a great question and one that a qualified estate planning lawyer Dardenne Prairie can assist you with.  In Missouri, a divorce essentially treats any distributions intended for your ex-spouse as void.  In other words,  you have a will, it says that when you pass everything goes to your ex-spouse, but upon finalization of the divorce, that provision for your now ex-spouse is treated as if they have predeceased you and therefore the distribution would pass to your contingent beneficiaries, which would usually be your children.

What happens if I have assets that will avoid probate, such as a life insurance policy?

The Missouri law treating the ex-spouse as a voided beneficiary only covers assets in probate.  If you had a life insurance policy that left your soon to be ex-spouse as the primary beneficiary, you would need to change that after divorce, because if you pass away, your ex-spouse would inherit.  This happens all the time, unfortunately, and that’s why it’s important to have a game plan to review your estate plan (or establish one) after your divorce is final.

The second thing to note is that any distribution to your ex-spouse upon your passing is only void if the divorce is final.  If you expect your divorce to be extended for a period of time, it’s important to meet with an estate planning attorney to make changes anyway.  Under Missouri law, you can adjust your estate plan to cut out your soon to be ex-spouse.  You can’t completely cut them out (unless you have a prenuptial agreement or postnuptial agreement), but you can ensure that they will not inherit everything, which would be the case if you did nothing and passed before your divorce was finalized.

What happens if I have a trust and am getting divorced?

That depends on the type of joint trust you have.  An irrevocable trust attorney O’Fallon, Missouri  can explain in more detail, but the terms of this type of trust cannot be changed after the trust is created, regardless of divorce.  This type of joint trust, however, is usually created by spouses to benefit their children.

If, on the other hand, you have a revocable joint trust, both spouses can retain control over the assets.  Of course, this assumes you would want to do that.  Most of the time, spouses want to dissolve their trust and distribute assets as agreed in their marital settlement agreement.  From there, you can take the safest step and create a new estate plan with your own trust, a new will and new powers of attorney.  You’d probably want to do that anyway, since your now ex-spouse is usually listed as your principal in your healthcare power of attorney and durable power of attorney documents.

Do you really want your ex-spouse making healthcare calls for you at the end of life?  Me neither.

As you can see, the best practice, at a minimum, when you are going through a divorce is to sit down and review your estate plan with an experienced estate planning attorney.

 

 

Guardianship for minors in Missouri…

Guardian

 

I often meet with a divorced client who is concerned about still being able to name a guardian if their ex-wife / husband is still alive.   First, a single person with minor children can and should name a guardian for their minor children either in a standalone document or, more preferably, in their will.

However, as I always tell these clients, the biological parent (i.e. the ex) always acts as the lone parent if you are to pass away.

So why should someone bother to still name a guardian?

Because if they were to pass away, there are no guarantees that the surviving parent (again, the ex) will be able or willing to serve as full custody parent to their minor children.  As we know, marriages often end because of this very reason.  Additionally, if the ex has issues with drugs, alcohol, gambling, money or the law, they may be unfit to serve as parent if you are gone.  Thus, you still want to name a guardian or preferably a guardian and an alternate / successor guardian for your minor children.

As I always tell clients who are divorced, it can never hurt you to name a guardian and if you don’t you leave it up to fate and circumstances for the court to appoint someone to do so if you are gone and your ex cannot serve, for whatever reason.

In that case, if your child is under 14, your wishes as expressed in writing will almost always be followed.  If you don’t have anything in writing, terrible ex’s terrible family members are free to put their hat in the ring to serve as a minor.   Do you want ex mother-in-law to be guardian?  Would about ex sister-in-law?

Bottomline, get peace of mind and name a guardian as part of your estate plan.

 

How to challenge a will in Missouri…

I have practiced law in three states (California, New Jersey and Missouri) and in each state I have practiced extensively in the area of estate litigation.  One of the most common forms of litigation involving an estate is the will contest.

Let’s say Mom passes away and you are one of her grown children.  Your brother, Biff, has always been a liar and a cheat.  Before your Mom passed away, she assured you that she left everything equally to you and Biff and that you were the executor.  However, you live out of state and Biff, who’s never been very successful, has always lived with Mom, including the last year or so of her life as she struggled with the Alzheimer’s Disease which would eventually take her life.

Now, Mom has passed away and Biff produces a will from Mom which says everything goes to Biff and that he is the executor of the estate.   Something is not right.

Biff has filed the will in court and has opened a probate estate.

What do you do?

You can challenge the validity of the will.

How do you do that?

There are several ways and the best method depends on the facts of your particular case, but here are the most common ways.

#1  THE WILL WAS NOT PROPERLY SIGNED OR WITNESSED.  In Missouri, a will must be signed in front of two disinterested witnesses.  If Mom couldn’t have signed on the date in question (she was in the hospital, etc.) or only one person witnessed the will or, sometimes, if the witnesses are not disinterested, i.e. Biff is one of the witnesses and everything goes to him – he is not disinterested.

#2  THE SIGNER DID NOT HAVE TESTAMENTARY CAPACITY.  Did the Mom know what the nature and value of her assets were, who should logically inherit them and the legal effect of signing a will?  If not, she did not have testamentary capacity and the will can be invalidated.

#3  THE WILL WAS OBTAINED BY UNDUE INFLUENCE.  Did Biff unduly influence Mom to sign the will?  Did he exert pressure on her, verbally abuse her and/or nag her about the will?  Did he pay for the will, was he in the room when it was signed?  Undue influence is not an easy thing to proof and generally you are going to need several examples of conduct and behavior that together form a picture that Mom was unduly influenced by Mom to sign the will.

#4  WAS THE WILL PROCURED BY FRAUD?  Did Biff present the will as a deed to Mom and she signed it believing it was a deed?  Were the witnesses actually present?  I was counsel on a case in California where the brother fraudulently told Dad that the amendment to his will was actually an additional copy of the original will, while he was in intensive care at the hospital.  We were able to win that case by proving Dad’s condition on the day in question, the arrangement of the signing by brother and the fact that the witnesses he stated were present were actually unaware of the signing and at home at the time it was signed.

Will contests can be a very emotionally charged form of litigation.  You need an attorney who knows not only the law of this brand of litigation but how to keep emotion out of the picture to get the best result possible.

will and money bags

Simple estate planning in Missouri…

SIMPLIFIED ESTATE PLANNING

 

Complex Planning

Estate planning in general is pretty complex.  However, depending on the needs of a client, it doesn’t necessarily have to be.

I’ve stated before that there are four cornerstones of any estate plan:  living trust and/or will, healthcare power of attorney, living will and financial power of attorney.

For a lot of folks, a simple will does just fine.  A simple will is generally defined as a will containing no trusts with a standard distribution scheme from the testator (the person making the will).

As an example, if husband and wife have two grown kids, relatively simple assets and husband’s will states that when husband dies, everything goes to wife, unless she has predeceased, then to the children equally, that would be a simple will.

No trust is necessary because there is no concern about estate taxes and simple assets to avoid probate.  If the family owns a home, a beneficiary deed can be drafted and recorded to ensure the home avoids probate upon the second spouse’s death.

Powers of attorney are complex documents but in the simplest of explanations allow you to name someone to make healthcare and financial decisions on your behalf if you become incapacitated and cannot do so yourself.  These are vitally important documents to have.  In the example above, husband would ordinarily name wife to make decisions on his behalf if he was unable to do so, then either or both of his kids as an alternate in the event that wife was not able to do so.

Because simple estate plans have less provisions and less documents, they are easier for an attorney to draft and cheaper to create.

Simplified estate planning is usually not a good fit for families with more assets, combined families due to divorce and re-marriage and families with a history of fighting or where members don’t get along.

What happens if I don’t have a will in Missouri?

What happens if I don’t have a will in Missouri?

When you execute a will, you are deciding who gets your stuff when you pass away.  You get to name a person called an executor (in Missouri we call them a “personal representative”) who is going to make sure the stuff you want to go to certain people actually gets there.

Now, if you don’t have a will, the state of Missouri has what are know as intestacy statutes (to die “intestate” means to die without a will) and those statutes determine who gets your stuff, since you never made a will and wrote that down yourself.  Problem is, in not having a will you are allowing the state to dictate who gets your things and that may not be the same people that you want to have those things.

That is exactly why you want to have a will.  They sound fancy but in reality they really aren’t.

Another key aspect of a will for parents with minor children is that they can name guardians for their children in case they passed away.

What is the difference between a living will and a will in Missouri?

People often get confused with the differences between a living will and a will in Missouri.  As explained above, wills primarily deal with who gets your stuff when you pass away.   Living wills deal with end of life situations and what treatments you want withheld if a doctor determines that those treatments cannot heal you.  The purpose of a living will is to give instruction to your family as to what treatments you do or do not want done if you are near death, persistently unconscious or have a terminal illness.  And they have nothing to do with who gets your stuff!  However, they are two of the documents you need to have a complete estate plan.

last will and testament