Divorce and Your Important Legal Documents

Divorce can be emotionally and financially draining. Quite frankly, it can be a traumatic experience.  When all the i’s are dotted and all the t’s are crossed, many people think it’s over.  Everything has been addressed.  All the important business has been handled.  Unfortunately, many people are wrong.

Many people would be surprised to learn that some of their most important legal and financial documents have been overlooked.   Documents that have big impacts, such as their:  will and trust, power of attorney, health care directives, beneficiaries, and minor children’s guardianship.  It is imperative these documents are updated to ensure that the person you intend to be in a position of authority over your affairs, should something happen to you, actually is.  The following are a few things you’ll want to consider if you find yourself facing divorce:

  1. Revoke your existing Will and create a new one. In Alabama, once you and your spouse divorce, your spouse no longer stands to inherit any of your estate, unless your Will states otherwise.
  2. If you have minor children, you’ll want to appoint a legal guardian.  You may also want to consider leaving your assets in a trust, and appoint a trustee to manage it, for the benefit of your children.
  3. Many assets pass outside of your will and instead are distributed upon death through written beneficiary designations. It’s critical that you update your beneficiaries on life insurance policies, retirement accounts, and certain bank and brokerage accounts.
  4. Revoke your existing Power of Attorney and create a new one. In Alabama, once you file for a legal separation, annulment or divorce, your spouse no longer authority to act as your agent, unless your Power of Attorney states otherwise.  However, this only applies for Powers of Attorney executed in 2012 or later.
  5. Update your Health Care Directive (also referred to as your Living Will) and appoint a new health care proxy.   This is the person who can make medical decisions on your behalf in an emergency or when you cannot speak for yourself.  It’s important to appoint someone you trust, as this person could be making life and death decisions on your behalf.  In Alabama, once you and your spouse divorce, your ex-spouse’s appointment is revoked, unless your Health Care Directive or your divorce/annulment/separation order states otherwise.

In summary, if you’re recently divorced or are considering divorce, it’s important that you consult with your financial advisor and/or attorney as soon as possible to review and update the documents noted above.  If you would like to speak with our firm about scheduling an appointment to address your specific legal needs, please fill out the short form below, or you may contact us at anytime by calling 256.533.2002.  Please do not include any personal information regarding your legal matter in the Comments box below.

 

“No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.”

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Estate Planning 101

Have you ever heard the old cliche “Most people don’t plan to fail; they fail to plan.”?  The thought of planning for your future can be overwhelming, and finding the time to do it can be stressful.  Many people think they don’t need to plan for the future; but, getting your affairs in order can make things much easier for your surviving family members.

Who Needs an Estate Plan?

Everyone needs an estate plan because believe it or not…almost everyone has an estate. Anything that you own becomes part of your estate:  your home, car, personal possessions, financial investments, bank accounts, life insurance.  It’s important to provide a plan that states your wishes to ensure your wishes are carried out as you intended.  For most people, the following documents constitute a basic estate plan:

WILL – A will details where you want your assets to go and who is to oversee the execution of the will.  It may also state who is to care for your minor children.

DURABLE POWER OF ATTORNEY (POA) – A durable POA allows you to designate a representative, such as a spouse or an adult child, to perform certain actions for you should you become ill, incapacitated or otherwise unable to manage your affairs.

HEALTH CARE DIRECTIVE – A health care directive is your written declaration of what, if any, life-sustaining medical treatments you would want in the event that you become incapacitated or placed on life support.

HEALTH CARE PROXY – A health care proxy is a person that you designate to make medical decisions on your behalf, and to carry out your health care directive, if you were ever to become incapacitated.

For advanced planning, a trust may be implemented as well.  Trusts are legal vehicles in which a person, a trustee, holds and controls assets for the benefit of a designated beneficiary.  Trusts are useful in many situations, such as for the benefit of children or tax planning.  Placing assets in trust for your children will allow for proper oversight and distribution of the funds by a trustee you designate to your children according to your wishes.

Common Questions:

Does a person have to have a minimum amount of assets to create a last will?  No.  You can create a last will to dispose of assets worth minimal value.

What happens if a person dies without a last will?  Your estate is probated (passed) through the courts for distribution according to the state laws of intestacy – not necessarily according to your wishes.

Can I use standard formed (fill in the blank) wills such as those found in how-to books?  Yes, but you may not get the results you were planning for.  If any of these documents contain errors or omissions, they may be void entirely or may contain provisions contrary to your wishes. Formed documents cannot account for the nuances of your individual situation. In addition, it is best to have an experienced attorney give you advice on which documents you need.

How do I decide what’s best for me?  Wills aren’t  necessarily complicated. They’re actually among the simplest legal documents.  Again, whether or not a will is adequate for your estate planning needs depends on your individual circumstances.  The most important thing is you don’t procrastinate because planning for your future is the best way to protect your loved ones and make sure your assets are distributed according to your wishes.  Consult an attorney, if you’re not sure what you need to protect your family.

Are there risks associated with Powers of Attorneys?  Choosing your agent carefully is the best way to minimize any risk.  Choose someone you trust completely and don’t forget that you are giving your agent the opportunity to access your funds at a time when you may not be able to oversee what he or she is doing.   You can also limit the authority you give your agent in the Power of Attorney.

Does a person have to have a Health Care Directive to stop treatment near the end of life?  No.  Treatment can be stopped without one if everyone involved agrees; however, without a health care directive, decisions may be more difficult and disputes are more likely to arise among family.

Does a directive mean “do not treat?”  A directive can  express both what you want and do not want.  Even if you do not want treatment to keep you on life support, you should always be kept reasonably pain free and comfortable.

If I name a health care proxy, do I give up the right to make my own decisions?  Naming a health care proxy doesn’t take away any of your authority.  You always have the right, while you are still competent, to override the decision of your proxy or revoke the health care directive.

Are directives only for older people with health problems?  No.  It is best for everyone to have a health care directive along with a will, regardless of age.  This allows you to free your family from making a tough decision of keeping you on life support or not.

Planning for your future doesn’t have to be difficult.  We understand.  We can help.  Contact Rahmati Law Firm today for comprehensive, professional advice and counsel in all aspects of estate planning.

“No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.”

Five Common Mistakes of Estate Planning

“Most people don’t plan to fail, they fail to plan.” – John J. Beckley

The idea of death is an unpleasant one and the thought of planning for your future can be overwhelming, so perhaps this is why so many people fail to plan.  Don’t be one of them by avoiding these common mistakes:

1. Failing To Plan

There is a common misperception that estate-planning is only necessary for the “rich”.  You know, “the 1%”?  Whether you own a home or have children, experts say most people should create an estate plan to guarantee their assets go where they want.

If a person in Alabama dies without a valid last will and testament, their assets will be distributed to their heirs by the State under “intestate succession” laws; however, only those assets that would have passed through their will are affected.  Typically this includes only those assets that you own in whole and in your own name.  Many valuable assets don’t go through your will, and will pass to the surviving co-owner or to the beneficiary you designated, whether or not you have a will.  These include, but are not limited to:

  • Life insurance proceeds
  • Funds in a 401(k), IRA or other retirement account
  • Property transferred to a living trust
  • Property you share in joint tenancy

2. Thinking All You Need Is A Last Will And Testament

A last will and testament may indicate who receives what assets upon your death, but whether or not you have a will, your estate will be administered and processed through the legal system, through the probate process, upon your death.  This can be time consuming and expensive for your surviving family members.

On the other hand, if you have a living trust, it eliminates the probate process for the assets titled in the name of the trust.  A few advantages of a living trust include:

  • It does not have to go through the probate process
  • It provides you with control over how your assets are to be distributed
  • It prevents the Courts from controlling your assets if you become incapacitated
  • It remains confidential and does not become a matter of public record

With a living trust, you’re able to name someone, known as the trustee, to manage the trust property for your designated beneficiaries.  While you’re alive, the trustee has a responsibility to manage your property as you have directed.  Upon your death, the trustee should dispose of your estate according to your wishes or manage it for the benefit of your designated beneficiaries.


3. Thinking All You Need Is A Living Trust

Many people assume that establishing a living trust and signing the trust documents means they’re done.  Wrong.  Remember, the trust does not exist unless it holds assets, so it must be funded.  Setting up the trust also requires you to transfer ownership of all the property you wish to place in the trust.  This may include revising title documents in the name of the trust.

Even if you establish a living trust, you should make a last will and testament as well.  Upon your death, your will collects and transfers any additional assets (assets you may have recently acquired or forgotten to transfer) to your trust so that they will be dispersed according to your wishes and avoid the probate process.  Your will also allows you to name a guardian for any minor children.  Your living trust does not.


4. The Old “Out of Sight, Out Of Mind”

All too often people set up their estate plan, but then never look at it again.  Remember, if you have minor children, it’s likely that your estate-planning documents specify who will be their guardian should something happen to you.  Keep in mind that life changes.  Your needs, and the needs of your children, may change too.

Tax laws can also change and people need to look at their estate documents to make sure their trust still works within the current framework.  You should plan to review your trust documents every few years or whenever you have significant life changes such as marriage, divorce or the birth of a child.

As noted in #1, not all assets follow your last will and testament or trust.  Insurance policies and retirement accounts are just a few that will be governed by the beneficiary forms you fill out at the inception of the account or policy.  Again, if you’ve experienced a significant life change, it’s beneficial for you to look at your designated beneficiaries and revise them as needed.


5. Appointing The Wrong Person As Your Trustee

It’s only natural that you’d want to choose someone close to you, maybe a parent, sibling or other family member, to be your trustee; however, they may not be the best person for the job.  “Take into account the person’s age and health and the likelihood of that person being around to administer your estate,” advises Dave Heilich, a CPA and wealth planner at Brown Smith Wallace in St. Louis.  “Obviously, an executor or trustee has to outlive you, so you wouldn’t want to name your brother or sister if they’re your age or older.”

If you decide to appoint a family member, you may want to consider designating a corporate executor or trustee as a successor.  Whoever you choose, make sure it’s someone who you can trust, is honest, and has the time and energy to take on the task of serving as your trustee.  Be sure to let them know where you keep your estate-planning documents and other important papers.

The primary goal of estate-planning is to protect, preserve and manage your estate upon your death or during incapacity.  Throughout life, you work hard to build assets and provide a level of financial security for your loved ones, and you should work just as hard to protect those assets in the future.  If you have questions about estate-planning or require assistance in drafting your estate-planning documents, Rahmati Firm stands ready to assist you. Please call (256) 533-2002 or click here.

*No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.