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.
May is National Elder Law Month, as designated by the National Academy of Elder Law Attorneys. It is a way to acknowledge the profession that supports seniors and their families with all of their planning needs. And while that sounds great, many people still ask, “What do elder law attorneys do?” Part 1 of this series, “Why May is Special for Elder Law Attorneys” will explore several ways elder law attorneys help seniors and their loved ones.
Elder law attorneys help seniors and their loved ones plan for the possibility of needing long term care.
According to the Alzheimer’s Association, 1 in 10 people age 65 or older has Alzheimer’s dementia.This number is predicted to double by 2050. Alzheimer’s is also the most expensive disease in the country, with no known cure. In 2017, the average lifetime cost of care for someone with dementia was $341,810.
A diagnosis of dementia can wreak emotional and financial havoc on a family. Elder law attorneys help take the financial stress off of families by discussing options to find and pay for appropriate care without losing the family home or a lifetime of savings.
The emotional and financial cost to family caregivers is also quite alarming. 83% of all caregiving comes from family members, friends, or unpaid caregivers. 30-40% of family caregivers suffer from depression. In 2011, a MetLife study estimated that women caregivers lose over $324,000 in lost wages and social security benefits over their lifetime. Male caregivers lose an estimated $283,000 in lost wages and social security benefits over their lifetime.
The family caregivers who are trying to work and provide care to a parent or loved one also need a legal plan. Elder law attorneys work closely with family members and caregivers to make sure they have proper legal documents in place should their health fail, or if they lose employment due to unpaid caregiving.
If it’s not in writing, it won’t be honored.
Elder law attorneys work closely with seniors to understand what should happen if they can no longer make financial decisions or health care decisions. For example, if mom develops dementia and can no longer pay the monthly bills, who will she want to have authority to access her bank account in order to get the bills paid? What type of care does she want if her dementia advances to the point that she can’t communicate her wishes? Does she want to live at home as long as possible? Does she want a private room if she’s in a facility? These are just a few questions that elder law attorneys discuss with clients, which then get put into legal documents so that mom’s wishes will be fulfilled.
My loved one is in the hospital and can’t come home – now what?
It can be very stressful for a spouse and children when a parent becomes ill and can no longer live at home safely. It can also be very expensive, putting the family’s home and savings at risk.
Elder law attorneys help families find and pay for the best long-term care possible. Unfortunately, 24 hour care at home or in a facility can cost families thousands of dollars a month. Therefore, it is often appropriate to look at other funding sources, like Medicaid or Veterans Benefits, to help offset the cost of care. Elder law attorneys help families explore options, and make the best decision for the loved one needing the care.
We will continue exploring how elder law attorneys help seniors and their families in Part 2 of “Why May is Special for Elder Law Attorneys.” In the meantime, if you have any questions or would like more information about how we, your friendly neighborhood Marietta Elder Law attorneys, can help you or a loved one, please don’t hesitate to reach out to us at 770-425-6060.
As a Marietta Elder Law Attorney, I can vouch that the number of adult children caring for their elderly parents is growing at a very fast pace. If you are a baby boomer and not already caring for an elderly parent, chances are high that you might be facing this situation soon. It isn’t always easy to know when, or how, to step in to ensure that your aging loved one receives the care that he or she needs. But, we’ve helped lots of Marietta area families through this stage of life and can offer tips for assisting your aging loved ones.
How to know when to step in
Age alone is not an indicator of when an elderly person needs you. Some people do quite well on their own into their nineties and beyond. Others might need help much earlier. The key here is to look for warning signs. The signs might include frequent falls or unexplained bruises, an empty fridge, or even unopened mail. Frequent visits are the best way to get a clear picture of your loved one’s physical and mental health.
Develop a plan
If you think the time has come to step in and provide care for your elderly loved one, you should start by developing a plan that includes all family members. Consider allowing your elderly loved one to also participate in creating the plan. It’s best to start with small, easy changes that still allow your loved one to maintain his or her independence.
Meet with an Elder Law Attorney
To provide the best care for your elderly loved one, you need to ensure that you have the necessary legal protections in place. A Marietta elder law attorney can help your loved one create documents that will allow you, or someone of their choosing, to make decisions for them in financial and medical matters.
If you suspect that your loved one needs help, I encourage you to take these steps right away. We get a lot of calls from people who waited too long and are facing unnecessary financial and legal crises as a result. Don’t limit your options. Call our Marietta elder law office at 770-425-6060 to schedule a consultation for the peace of mind of knowing that you are doing everything possible to help your loved one.
Picture this – you get an opportunity to spend some alone time with your spouse. What do you do to prepare for date night? You carefully select a babysitter. Then, you write detailed instructions; when to feed the baby, how often to change diapers, what snacks are allowed…and you leave a myriad of contact information including your cell phone numbers, the grandparent’s phone numbers, the neighbor’s phone number…you get the idea.
Putting this plan in place takes some time, but it provides you with a great sense of peace knowing that the babysitter you chose will have all that he or she needs to make sure your children are okay during your absence.
Now I’m going to ask you a question. Answer honestly. How much time have you spent planning for your children’s future in the event that you can no longer care for them?
If you are like most parents of young children, I already know the answer. It’s a sad fact that most parents of young children do not have an estate plan in place. If you think about it, you probably spend more time preparing to go out for a dinner and a movie than you do planning for the potential that you won’t be there to raise them.
I get it. The odds are in your favor. Chances are great that you will live a long, healthy life. But, accidents happen. Even young and healthy people can face the unexpected. You could be temporarily or permanently incapacitated – or worse. If something does happen to one or both parents, it can devastate a child’s world. Even though you can’t plan away the emotional trauma they will suffer, you can put a solid foundation under them that will ensure that they are cared for by the person you choose.
In a way, the process is similar to planning for a date night, but the first step is to select a guardian rather than a babysitter. This person will raise your child, so you should carefully consider who should fill this role. It’s often best to brainstorm with a Marietta will and trust attorney, as he or she can help you consider each person from all angles.
The next step is to make a plan that legally documents your wishes and preferences, including your preferences for your children’s upbringing, what type of education you envision, experiences you wish for them to have, at what age should they inherit money that you leave for them, etc. Again, an experienced Marietta will and trust attorney can help guide you through this process.
Just like having a detailed plan for date night, once your estate plan is in place, you’ll be able to relax and enjoy the peace of mind that your children will have a secure future even if you aren’t there. Call our office at 770-425-6060 today and schedule a Georgia Family Treasures Planning Session to get started.