The short answer is: it depends.
This is a question we Marietta Guardianship Lawyers get a lot, and one we typically discuss at length with non-married parents during our planning sessions. When one of the parties of a divorce decree dies, this will end the custody agreement because there’s no longer anything to govern. In most cases, custody usually reverts to the surviving parent.
An exception to this is when one of the parent’s rights to the children has been terminated. If this is the case, third-parties, such as grandparents, may be allowed to intervene. Grandparents can also intervene if they believe the surviving parent is not able to care for the children. The burden of proof would fall on the grandparents to demonstrate that the surviving biological parent is unfit and that the best interest of the children would be better served by the third party having custody They would have to go through a lengthy custody proceeding that can be stressful on everyone – especially the children.
But, this can all be avoided…
The custodial parent can make it easier for grandparents (or other relatives) to step in after their passing with just a few estate planning steps. For starters, they can name an alternative guardian for the children in their will or trust. They can further explain their reasons for the nomination and why they believe the other parent is unfit.
Of course this doesn’t guarantee that the court will allow the guardianship, but it will certainly be a factor in the court’s decision. If the court approves the nomination of a guardian, it doesn’t sever the parental rights of the surviving parent; it simply states that the children will live with the nominated guardian instead.
The bottom line is that if you believe that your ex-spouse is not fit to raise your children, it is critical that you take the steps now to put an estate plan and guardian nominations in place that will be in the best interest of the kids should something happen to you. Call us now at 770-421-0808 to set an appointment with an experienced Marietta guardianship attorney if you need assistance getting started.
A good Atlanta estate planning attorney is going to help you take a lot of things into consideration when putting together your plan. Various factors influence your estate planning after all: finances, children, age…But what about your gender? Is estate planning for women different from that for men?
Actually, there are some important things to keep in mind.
A Spouse’s Will Is Not Enough
Atlanta estate planning attorneys see again and again where a married couple believes that only one of them—usually a husband—needs to have a will. This can cause a lot of problems in the long run, however.
- Your family may not know your wishes, even if you think they do.
- In times of grief, people aren’t always at their best and could resort to fighting over the estate.
- If your spouse remarries, the new wife (and her children) could legally inherit your things.
These are just some of the scenarios estate planning attorneys see playing out when one partner is relying on the other’s will.
Women Need Powers of Attorney
Various types of powers of attorney are an important part of an estate plan, and this can be especially true for women. The average woman’s lifespan is longer than a man’s, which means that she may be on her own near the end of her life. With no spouse to make medical and financial decisions should she become incapacitated, it’s even more important to make sure appropriate appointees have been legally declared.
Updates are Needed When Marriage Status Changes
When one spouse has passed away, it is always a good idea to review the surviving spouse’s estate plan. There are likely some changes that need to be made based on changes in income and other living circumstances. A knowledgeable estate planning attorney in Atlanta will be able to help redefine the goals you and your spouse set in order to ensure you stay on track.
It’s also very important to meet with an estate planning lawyer after a divorce. The details of the divorce can strongly impact your financial future, and the attorney will work to make sure you know and have access to what is rightfully yours. Additionally, if you already have a will, you will want to change it to avoid the possibility of your ex being entitled to your estate or assets.
A Trust May Be a Good Choice
A mother wants to provide for her child in every way possible, and while trusts are something that are often associated with rich people, they are a great tool for just about anyone with heirs. Talk with an estate planning attorney about why and how to go about creating a trust to help fund your children or grandchildren’s future should you not be around to help them.
There are plenty of other considerations that apply specifically to estate planning for women, and the best way to get all the information you need is to get together with a qualified, experienced attorney in Atlanta. To schedule an appointment for a complimentary Georgia Family Treasures Planning Session at one of our metro Atlanta offices, we invite you to call 770-425-6060 to get started.
If you’d like to give your loved ones and yourself the gift of peace of mind, please call Steve at 770-425-6060 or email him at firstname.lastname@example.org.
It’s always a great feeling when a new client meets with a wills and trusts attorney in Marietta to get started on his or her estate planning. Every day, people in Marietta recognize the importance of putting a plan into place to prepare for their own futures as well as those of their heirs. Wills and trusts are two very important tools that the client and lawyer can create to protect that future. As important as that initial meeting is, however, there is still a need to follow up regularly to keep your wills and trusts updated and reflective of your current situation.
There are some times when it is obvious that your wills and trusts should be updated, but there are other times that are easier to overlook.
Major Life Changes
When there is a major change in your life, it’s time to call your Marietta wills and trusts lawyer. These types of changes, such as a marriage, divorce, or birth of a child may dramatically affect who you want to name as beneficiaries.
Health situations are also another big indicator that it’s time to update your wills and trusts. Medical care can be incredibly expensive, and you may need to rearrange your plans to accommodate the costs. If dealing with a terminal illness or potentially life-threatening treatment, it also makes sense to ensure that your plans reflect your wishes.
Many Purchases Should Trigger Updates
Wills and trusts lawyers are able to help clients lay out a plan based on what the client has at the time. When your situation changes through major purchases (or sales) of real estate or other valuable assets, you should update your estate plan to reflect those changes. You want to ensure that the asset is included in your will or protected by your trust.
Purchases of, or changes in insurance policies, will likely also lead to a call to your Marietta attorney. These purchases will affect what you have to leave behind and will need to be reflected in your estate plan.
While you may not need to make changes with your Marietta wills and trusts attorney every year, it’s still a good idea to do an annual review of all your estate planning materials. In addition to refreshing yourself on what is there, your lawyer will also be able to advise you on any laws that have recently changed that might affect decisions you’d previously made. Just reading over the documents may be enough to notice a change that needs to be made. Not only does this give you an opportunity to make sure your plans still fit your needs, but by keeping them up-to-date, you are strengthening your will against being invalidated later. After all, if you’ve worked with an attorney to keep the wills and trusts fresh and in accordance with the most recent life changes, they are likely to reflect your true intentions.
Below is a fictional letter that my friend and colleague in Colorado, Martha Hartney, Esq., recently posted on her blog. The paragraphs at the bottom are from me. Martha agreed to let me post it here for everyone who reads my updates, so a BIG THANK YOU! goes out to Martha! Martha says, “I drafted it to anyone’s former partner because I know only too well what can happen when estate planning is not done properly. I hope you enjoy this outreach to an ex-spouse or partner and consider taking steps to do everything this letter suggests for yourself. You can even send the link to your ex!”
Though we’re not married (cohabitating, procreating) anymore, there are a few things I’d like to say about how you set up your affairs for our kids. You’re about to go on vacation—and I know you worry about being away from them and having an emergency or tragedy happen. I don’t have ANY say in how you set up your estate plan. But there are things that I’d like you to consider about the well-being and care of our beautiful children.
- Make sure your life insurance is up to date and your beneficiaries are listed properly. Don’t name our kids as direct beneficiaries! That will put them straight into a conservatorship (guardianship) where a judge will supervise their financial lives until 18, then they’ll get the assets outright in one fell swoop.
- Instead, leave your assets to them in trust, which will sidestep probate, keep the management of your assets private and in your control, and prevent loss of those assets to our kids’ future creditors and predators and reduce the estate taxes that can take valuable resources away from our kids.
- Name a trustee that I can work with, someone you trust with your life, because your trustee will have to deal with me. If I were the only parent left, I would be legally responsible for ensuring the assets left to our children are properly managed. I would be looking at the annual accountings. I would be the one asking for court intervention if they are mismanaged or embezzled.
- Don’t leave your assets to our kids outright and don’t leave too much. There is nothing more damaging to a kid’s life purpose than having too much money at their fingertips. There’s a saying, “Leave them with enough to do something, but not enough to do nothing.” If you have lots of assets, consider giving some to your favorite charity instead of the kids.
- Don’t cheap out on an estate plan. Whitney Houston did that. She bought a schlocky will that didn’t protect her assets from her daughter’s creditors, estate taxes, and probate. Spend the money to get it done right. It’s really not that much in the scheme of things.
- Plan for a very long life. I know you want to leave our kids your accumulated wealth, but think of yourself first. We’re all living longer lives and, even though we’re not “in love” anymore, I do care about you and your welfare. Create a wealth-plan that will give you lifelong, passive income.
- Make sure you have disability insurance. Your ability to earn is your greatest asset. Nothing will diminish your wealth, and put you in poverty quicker than not being able to earn money anymore. Even if you didn’t need care, if you couldn’t work, you would run through savings quickly and may have to cheap out on things like your lifestyle, vacations, then even necessities like good, wholesome food, the roof over your head. Please don’t let that happen to our kids or to you.
- Get long-term care insurance. The person who is going to live to 150 is believed to have already been born! People will routinely live to be over 100 and that could be you. Long-term care is EXPENSIVE and it’s only going to get more so. Since you’re over 50 and in good health, consider buying a LTC policy on you, or a rider on your life insurance policy.
- Name a guardian for our kids—and ask me who I named. We might be able to agree still on that. Of course, I’ve taken care of my guardianship nomination but if I didn’t, our kids would be subject to a guardianship proceeding—and you and I both know that would be bad because our families would duke it out. You can even do that for FREE online at www.kidsprotectionplan.com. [In Georgia, go to georgia.kidsprotectionplan.com] With that resource, there’s really no reason not to do that at the very least.
- When you decide to remarry, get great guidance from an attorney in advance because remarriage can cause complications to your planning. I’m sure you’ve heard of assets going to a spouse instead of to kids—and while you may eventually want that—don’t let that happen by accident or oversight.
- Make sure you have your own healthcare documents in place naming your agent for medical decision-making. Don’t name the kids as your agents until they are legally capable—over 18, and emotionally able to handle the job.
- Check with your attorney and your retirement account custodian to see if I need to sign any waiver to your retirement accounts. In some cases, if you haven’t remarried, as your previous spouse, I may retain some rights in a 401(k) or similar account that you may have had when we were married. I know that’s not what you want, and that’s okay.
- Most importantly, shoot a video of yourself telling the kids your life story. Tell them about how we met and what you liked about me. Tell them that it’s not their fault that we didn’t work out but that we did have some awesome times together. Tell them about your biggest life lessons, your values, your setbacks and victories. Tell them what a terrific businessperson you are and how you learned to be that. Tell them about your favorite hobbies and what you’re good at. Tell them what you love about them and how much blessed you are that we brought them into the world. [We are now offering Family Treasures Legacy interviews to our clients – call to set yours up today!]
So, dear Ex, I do want the best for our kids and I hope you consider my wishes so that if something did happen to you, they’d be okay. Because I promise that if something did, I would do everything in my power to make sure they’re able to heal, to thrive, to honor you every day of their lives.
If you haven’t gotten around to doing these things yourself, we can help. If you’d like to learn more about anything you read here, call our office today to schedule a time for us to sit down and talk. We normally charge $750 for a Georgia Family Treasures Planning Session, but because of the importance of divorced parent planning, I’ve made space for the next five people who mention this article to have a complete planning session at no charge. Call today and mention this article.
I’m also happy to send you a FREE digital copy of the best-selling book “Wear Clean Underwear—a Fun, Fast, Friendly—and Essential Guide to Legal Planning for Busy Parents” so you can get even more education on your family’s legal needs. Just call my office at 770.425.6060 or email me at email@example.com and ask for the book. We’ll email it to you right away!
Marietta and Cobb County, Georgia, estate planning attorney and divorce lawyer Steve Worrall reminds us that when a divorce—also called a dissolution of marriage—is imminent, meeting with an estate planning attorney in Cobb County, GA, is probably not at the top of anyone’s list of things to do. But, it very well should be. Keep in mind that divorces can take a fairly long time (months or even years) to complete. It makes sense to consider what would become of your assets, or even your physical self, if you should become incapacitated or die before the divorce has been finalized.
If you do not take steps to change your estate plan in light of an impending divorce, then your soon-to-be ex may still be entitled to everything that was agreed upon when it was originally drawn up (or as the courts deem appropriate if no estate plan is in place). This means that if he or she has your medical power of attorney, all of your medical decisions will be in the hands of someone who may not have your best interests in mind. Likewise, if you are incapacitated and your spouse has power over your finances, it’s possible that you will not be happy with the outcome.
Another concern comes up if you and your spouse are co-trustees on various trusts or other accounts. Again, if you become incapacitated, the spouse could access and use all kinds of property that you would not want him or her to have access to. This becomes a real worry when you realize that this person could actually buy or sell property or even take out loans without your consent.
And, if you have inherited or stand to inherit from your parents, another potential problem arises. Should you pass away before the divorce is final, your inheritance may legally pass directly to the person you were in the process of trying to get out of your life. Even if you have assets that would be passed directly to your minor children, without a proper estate plan in place, the courts will likely put your ex in charge of any money or other property that you leave them.
In order to protect your interests during a divorce, it makes good sense to talk with your estate planning attorney. A qualified will attorney in Cobb County can offer advice on where you may be vulnerable. You may need to work with him or her quickly in order to revoke the appropriate documents, and keep in mind that you might need to contact various institutions personally to ensure they are aware of the revocation.
An estate planning attorney who is familiar with the laws specific to Georgia is the best option for ensuring that you are protecting yourself both during and after a divorce in Georgia.
Tip #1: Update your will immediately.
This may not be top-of-mind, but updating your will is extremely important if you are going through a divorce. Having your assets go to your ex can be like adding insult to injury…and can tie up your estate for years to come.
Tip #2: Update your life insurance policy and retirement beneficiaries.
Actor Dennis Hopper was in the middle of a highly contentious divorce when he died. Since he didn’t change his life insurance policy beneficiaries, his ex received the proceeds. Be sure to name new beneficiaries on your life insurance and retirement accounts so your ex doesn’t inherit your assets.
Tip #3: Do not wait until the divorce is final.
Contrary to popular belief, you do not have to wait until your divorce is final to update your estate planning documents. If your divorce is likely to drag on for months or even years, you can still protect your assets from your ex by updating your estate plan.
Tip #4: Revisit your choice of executor and trustee.
While your ex may become the legal guardian of any minor children if you die, he or she should not necessarily be named as executor of your will or the trustee of your children’s inheritance.
Tip #5: Update your Durable Power of Attorney for Health Care.
If you do not want your ex making decisions about your health care, you should update your durable power of attorney for health care as well as your living will. This also applies to any other advance directives that name your ex as a decision maker.
If you’d like to learn more about estate planning and asset protection and how it affects you in a divorce case in Georgia, call our office today to schedule a time for us to sit down and talk. We normally charge $750 for a Georgia Family Treasures Planning Session, but because this planning is so important, I’ve made space for the next five people who mention this article to have a complete planning session at no charge. Call us at 770.425.6060 today and mention this article.