Massachusetts Estate Planning and Elder Law

Speaking of Divorce and Estate Planning....

I will be speaking at the Suddenly Single Retreat in Boston on June 29, 2008 on the topic of Estate Planning and Divorce.  Click on "events."  Note that the site has music playing, so you may want to mute your computer before clicking. 

The 2 day event is for divorced (or soon to be divorced) women who are 40 or older, and is being put on by Nancy Michaels.  There will be great work shops on everything from helping your kids (and yourself) cope with the divorce, to the financial and legal things you need to know and do to protect yourself going forward.  There is also yoga in the mornings and an ambush make-over! 

Hope to see you there!

Estate Planning and Divorce - Tips on Trusts for the Family Law Attorney

Many times in a divorce, one or both parties will be required to set up a trust to hold funds for the minor children's college education.  I've been contacted by  divorce attorneys after the divorce to draft such trusts based on the language in the divorce agreement. Which was written by divorce attorneys. Not trust attorneys.  And that is where the problems can begin. 

Many times the terms used in the divorce agreement regarding the trust are not clear - for instance if "minor children" is used in one place and "emancipated children" is used in another, which was meant?  If it refers to a providing for funds for a "secondary education" does this mean only at an accredited school, or would a trade school qualify?  Trying to interpret the answers to these questions after the divorce is final so that the trust can be drafted to comply with the agreement can be time consuming and costly.  In addition, if the other party disagrees with how the trust was drafted based on vague language in the divorce agreement, that can lead to more costs and time with the divorce attorneys hashing out what their clients meant in the agreement, and the estate planning attorney having to redraft the trust. 

Checking in with an estate planning attorney when you are including language about a trust in a divorce agreement can save you and your client a lot of time and hassle, and the estate planning attorney might bring up some issues you hadn't thought of with regard to the trust. 

Estate Planning and Divorce - Part 2: Post Divorce

See first post in the series here.

You are nearing the end of your divorce, the final hearing or settlement is in sight.  The last thing you want to do is hire another attorney, write another check out of your bank account which may have taken quite a hit during the divorce.  But, you must.  You need to see an estate planning attorney, to make sure that those things you fought for in the divorce are protected, and that your wishes are honored.   And, rest assured, visits with an estate planning attorney do not involve any court visits, there are no "opposing parties" and generally estate planning attorneys do not charge by the hour. 

You should meet with your estate planning attorney to form your plan before the final divorce hearing, so that the documents can be signed as soon as possible after the final hearing.  This is because during the 90 days after the final hearing, you are still married, and if you pass away during this time without a new plan in place, your soon0-to-be-former spouse could inherit everything.

After your divorce, in addition to signing your new estate planning documents, you should also make sure that you have changed the beneficiaries on any life insurance policies, 401(k) plans, IRAs, and any other accounts that may have had your former spouse listed.  If you have set up a trust, your estate planning attorney can assist you in making sure that the trust is properly named as the beneficiary of these accounts.

For thoughts on this subject from a Family Law Attorney's perspective, visit the Massachusetts Divorce and Family Law Blog written by Attorney Steven Ballard, who posted about this on Saturday. 

Estate Planning and Divorce - Part 1

If you are separated from your spouse, filing for divorce, or even just contemplating it - you need more than just a divorce attorney.  You need to visit with an estate planning attorney to make some critical changes to your estate plan before and after the divorce.  This post will deal with changes than can be made before the divorce, and the next post will be about changes to make after the divorce. 

1. If you have signed a health care proxy naming your spouse as the person to make medical decisions for you, you should revoke it and sign a new one appointing someone else.   Notify your spouse that you have revoked the HCP naming them.  Make sure that anyone who knows of the old HCP (such as your doctor) is given a new one.  If you have not signed a HCP, sign one, and make sure your doctor has a copy and carry a card in your wallet indicating who your new health care agent is, and where your HCP is located.
   
2. Remove your spouse from any Power of Attorney documents that you've signed appointing them and notify any entities that may have received a copy of the old Power of Attorney so they know it has been changed.  The POA is a powerful document which can give the holder the right to access bank accounts that are in your name alone, get financial and sometimes medical information about you and even sell real estate that is your name.  It is vital that you sign a new one if you do not want your spouse to have this power. 

During this time you should also be thinking about your estate plan after your divorce. If you would not want your former spouse to be in charge of the money that you will leave to your minor children, you will need to set up a trust, with someone else as trustee.  This can be a sibling, parent, friend or even a bank or other financial institution.  Your estate planning attorney can explain what the responsibilities of the trustee are, so that you can make the best choice, and can help you determine when the best time to sign the new documents are.

 

Tune in tomorrow for "Post-Divorce Estate Planning Tips".

For further thoughts see the New York Probate Litigation Blog.