Tag Archive for: Wills

Will 2018 be the year you make a Will and complete your estate and disability planning?

If you kick it down the road another year it won’t matter … unless 2018 is the year you die or become incapacitated or disabled.  In that case, those you care about will wish you had planned better, especially if they are financially dependent on you.

If you don’t make a Will before you die you leave an “intestate” estate.  The state has rules governing who gets your property, who has priority for appointment as your personal representative and how any of your property received by minors will be managed.  If you are confident that you and your loved ones will be perfectly satisfied with the state’s choices about all this, you don’t need a Will.

If your beneficiary designations on life insurance, retirement accounts and other financial accounts are based on the state of your family and finances five, ten or more years ago, payment from your financial assets may be delayed or directed to the wrong people.

If you have an inadequate financial power of attorney, or none at all, a court proceeding called guardianship of property may be necessary to manage your property at a cost of thousands of dollars and many wasted hours.

If you have an inadequate advance medical directive and health care power of attorney, or none at all, health care decisions may be adversely impacted.

If you decide you are going to take care of these matters this year, contact Thyden Gross and Callahan, LLP.   We can help.

Advice from a divorce attorney: You should take action after a divorce to remove bequests to an ex-spouse in your will and other documents.  If you fail to do so, however, there are laws that provide that the judgment of divorce eliminates prior bequests or certain beneficiary designations to a former spouse. See Va. Code Sec. 20-111, 20-111.1, 64.2-412; Md. Code, Estates and Trusts Article, Sec. 4-105(4); DC Code Sec. 18-109 and Estate of Roscoe H. Liles, 435 A.2d 379; 1981 D.C. App. LEXIS 355.

But what if your estate planning was done through a revocable trust and not a Will?  In Maryland as of October 1, 2016, a judgment of divorce voids any term in a revocable trust that would distribute assets to the former spouse or appoint the former spouse trustee or trust advisor.  Md. Code, Estates and Trusts Article, Sec. 14.5-604.  Virginia and the District of Columbia do not have a similar law.

The effect of all these statutes on the treatment of a now former spouse in an estate plan is uncertain and incomplete and may be frustrated by federal law spousal protections. The savings statutes are no substitute for careful review of estate planning documents and beneficiary designations, and corrective action to ensure that you do not unintentionally include a gift to your former spouse.

by Michael F. Calllahan

You need a new Will post-divorce.  After your divorce you should review your Will and all beneficiary designations to ensure that you do not unintentionally include a gift to your former spouse.  You are no longer married so your former spouse need not be mentioned in the Will at all unless required by your marital settlement agreement.

Most people do not accidentally leave a bequest to their former spouse in the Will.  Most divorced persons either have no Will or have replaced or at least revoked the Will that provided for their now former spouse.  If you made a Will that left all or part of your estate to your former spouse and have not revoked it by a new Will or otherwise, you should contact a lawyer now!  Even if you are in this position, and die, the legislatures and courts of our local jurisdictions have helped you, and your preferred heirs.  See Va. Code Sec. 20-111, 20-111.1, 64.1-59; Md. Code, Estates and Trusts Article, Sec. 4-105(4); DC Code Sec. 18-109 and Estate of Roscoe H. Liles, 435 A.2d 379; 1981 D.C. App. LEXIS 355.  These statutes generally provide that the judgment of divorce eliminates prior bequests (Maryland) or prior bequests and certain beneficiary designations to the former spouse (Virginia).  The Liles case concerned a Will and probably only applies to Wills.

So given all that, is a new Will not necessary post-divorce? Well, a Will is a written document directing the passage of property after the death of the maker of the Will – the “testator.”  Among other things a Will addresses who will receive the testator’s property that does not pass outside probate by deed, deposit contract, beneficiary designation or other non-probate means, names the testator’s personal representative and includes many other necessary and helpful provisions. Almost all of the provisions of a good Will are determined by the testator’s family relationships and financial circumstances.  Divorce alters both.  So if you made a Will based on your family relationships and financial circumstances as they existed before divorce you probably need a new Will prepared in light of your new post-divorce family relationships and financial circumstances.

by Michael F. Callahan

A Will directs the passage of property after the death of the maker of the Will and names the testator’s personal representative.  Wills are revocable – they can be modified or revoked by the testator so long as he or she is alive and has testamentary capacity.  Most of our divorce clients arrive in one of two situations – they have not made a Will or they have made a Will that leaves all their property to their spouse and names their spouse personal representative of their estate.  Most of our divorce clients have a lot going on – it’s not the best time for calm thoughtful reflection on how they want to take care of those they love in the event of their death.

If you are separated and contemplating or pursuing divorce, circumstances have certainly changed since you decided to leave all your property to your spouse and name him or her as your personal representative.  Divorce is a process, it takes time.  Unless there is an early settlement it can be years from separation to date of final divorce.  We recommend clients in this situation consider amending or revoking their Will.

What about those persons who are separated from their spouse and have not made a Will? If you die without a valid Will, the state has rules governing who gets your property and who has priority for appointment as your personal representative.  In most circumstances in the Washington, DC area, the state’s rules put the surviving spouse in charge of your estate.  If you have no children, your surviving spouse will receive all of your probate estate.  If you have children, his or her share will be one-third in DC and one-third in Virginia if your children are not the surviving spouse’s children, one-half in Maryland, or all in Virginia if all of your children are the surviving spouse’s children.  We recommend clients in this situation consider making a Will to avoid these outcomes.  Note, however, that statutory spousal protections usually make it impossible to ensure that your estranged spouse takes nothing from your estate.

 

 

A Will is a written document directing the passage of property after the death of the maker of the Will – the “testator.”  A valid Will must be executed by the testator with the requisite formalities – usually in the presence of two disinterested witnesses who also sign the document.

Among other things a Will addresses who will receive the testator’s property that does not pass “outside probate” by deed, deposit contract, beneficiary designation or other non-probate means.  A Will generally names the testator’s personal representative, trustee, if necessary, and back-ups.  A good Will should also name a guardian of any minor children and provide for the care and management of any property that passes to minors.  Most complete Wills have many other provisions addressing debts and taxes, simultaneous death, and administrative matters.

If you don’t make a Will before you die you leave an “intestate” estate.  Don’t worry, the state has rules governing who gets your property, who has priority for appointment as your personal representative and how any of your property received by minors will be managed.  If you are confident that you and your loved ones will be perfectly satisfied with the state’s choices about all this, you don’t need a Will.