Making a Will is Wise When Divorce is Contemplated
Are you getting divorced? Just thinking about it? If so, you should also be thinking about a Will. If you do not have a will, then state law (intestacy law) will determine what happens to your money and property when you die. Not planning on dying? Few people are. It is always wise to prepare for the unexpected. If you pass away, do you want a significant portion of your assets, or all of them, to go to your spouse? Even when someone passes away during a divorce, the spouse may be able to claim a share of the estate.
What will happen to your property depends on the laws in your state. As an example, some states have adopted the Uniform Probate Code. Under the UPC, when a person dies having a spouse and children the spouse will be entitled to all of the assets of the deceased person. The situation changes depending on the individual circumstances. Most states will consider whether the children are from a previous marriage and whether a parent survives the deceased. In most cases, however, a spouse would get a significant share of the estate.
It makes sense that a spouse takes first priority under most intestacy laws because most couples would prefer it that way. The purpose of intestacy laws is to do what the state thinks that the deceased person would have done if they took the time to make a will. Unfortunately, the laws can be applied rigidly and there is not much opportunity to consider what the deceased would really want in light changed circumstances. To put it simply; if you know what you want then you should put it in writing. Creating a binding legal document is the best way to give your wishes effect and to save your family the headache.
Already Have a Will? It May be Time to Amend
Maybe you already have a will but you are in the middle of a divorce and you no longer want your spouse to get the assets provided for. This may be a good time to amend your will or create a new one. In almost all states, a completed divorce will terminate the right of the former spouse to take under a will. It will also terminate their right to take under state intestacy laws. To be on the safe side though you should have an interim will while the divorce is pending or you should change your will.
Of course, once your spouse is removed as a beneficiary in your will, you need to consider who should get your assets. Again, state law will make that determination if you do not name another beneficiary. Do you want everything to go to the children? Should it be divided evenly? Should a trust be created? Now is a good time to re-evaluate the situation.
As many people have learned through personal experience, handling the estate of a loved one after they die can cause great stress. It is not uncommon to have family conflicts, even in an otherwise peaceful family. The advantages to having a carefully drafted will cannot be underestimated. A consultation with a lawyer can help you understand how state laws can affect how your estate will be handled. He or she can help you to express your wishes in a way that is legally binding.
Don't Want to Make a Will? Things You Should Learn About Your State's Intestacy Laws
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