A divorce changes everything. If you are in the process of divorce or just finishing up, you are mostly likely busy trying to readjust to your new life. Although it’s a hectic time, it is important that you do not forget that you need to update your estate plan. Here is a Post-Divorce Estate Planning checklist to get you started:
- Update Your Living Trust and Will
These documents contain instructions about a number of crucial estate planning decisions such as who is in charge of the administration of your estate, who is nominated as guardian of your minor children, who are the beneficiaries of your estate, and who is in charge of managing assets on behalf of the beneficiaries if they are minors. The last thing a newly divorced individual wants is to have their ex-spouse be in charge of handling their assets should they become incapacitated or pass away. After a divorce, joint trusts need to be dissolved with each individual creating their own with the appropriate updated instructions.
- Update Durable Power of Attorney for Finances and Advance Healthcare Directive
These critical estate planning documents allow for the appointment of an agent to act on your behalf to make crucial financial and medical decisions in case of your incapacity. Again, the last thing a recently divorced individual wants is to have their ex-spouse in charge of their finances and medical decisions. New powers of attorney should be executed post-divorce.
- Update Beneficiary Designations
Beneficiary designations are essentially contracts between a financial institution/administrator and the person who owns the account. These are extremely important because for estate planning purposes they generally trump any outside instructions. Therefore, even if a trust/will document has been updated post-divorce, those instructions will not control an asset with a beneficiary designation attached to it unless the trust is named as a beneficiary. Individuals often forget to update all of their beneficiary designations post-divorce. In fact, most people rarely, if ever update them and this can cause a nightmare when that individual passes away.
- Review Titling of all Major Assets
A title dictates to whom and how an asset is transferred at death and who has control over it during their lifetime. The most common mistake made in estate planning is simply listing an asset in a trust document. Proper and formal titling of all of the major assets is imperative at all times. But for estate planning post-divorce, it is essential that all titles be reviewed.
If you are recently divorced and haven’t created or updated these estate planning documents, call our Cobb County estate planning law firm immediately at (770) 425-6060 and schedule a consultation.
An executor is chosen by a testator to carry out the intentions of the will after the testator has died. It’s fairly easy to replace an executor when the testator is still alive – all the testator has to do is simply name a new executor. However, this becomes far more complicated and difficult once the testator has died. While it’s difficult to remove an executor from an estate, it’s not impossible, or even unheard of, to do so.
Why would you want an executor removed from an estate?
An executor is supposed to carry out the intentions of the will and handle the estate in good faith. The executor may not do it perfectly, and the executor is under no obligation to change their performance to the liking of the beneficiaries. So, while some beneficiaries may wish to replace an executor simply because they don’t like them, or they are in conflict, this isn’t good enough. An executor has to demonstrate that they are failing at their duties in order to be removed and that this is likely to continue as long as the executor is in place.
What would you have to show to get an executor removed from an estate?
First, the only people that can seek to get an executor removed are interested parties. These are beneficiaries or any creditor that is seeking compensation from the estate. These beneficiaries or creditors will have to show that the executor is incompetent, is careless, or is intentionally mishandling the estate by wasting it, diverting funds, or stealing. For example, an executor who is illiterate, or refuses to do a proper accounting, who distributes property to non-heirs, or takes money from the estate for himself or herself when he or she is not entitled can be (and probably should be) removed from the estate because these behaviors cause harm to the estate.
These parties can also seek to remove an executor if they can show that the executor has a conflict of interest between his or her executor duties and some other fiduciary duties that cannot be reconciled and makes the executor unable to be fair to the estate. For example, if the executor of an estate also happens to be the vice president of a bank that is suing because it believes it actually owns the title to a property in that estate, the executor has a conflict of interest.
How do you get an executor removed from an estate?
Any interested party that wishes to remove an executor would have to petition the probate court to have the executor removed and present a reason. It’s best to have a Cobb County probate lawyer advise you first and help you with this petition. You will want to get an accounting, if you can, and any evidence of why the executor should be removed. You can also ask the court to temporarily forbid the executor from doing anything to or with the estate until you get a hearing on the matter.
If you would like to discuss your options with an experienced Cobb County County probate lawyer, please call our Marietta probate law firm at 770-425-6060 to schedule a consultation.