Estate Planning Ideas for Divorced & Separated Persons

By Kenneth A. Vercammen, Esq

If you do not write a Will, the government has already written one for
you. Your assets go to whoever a state law says receives the assets, or to
the government itself! A Will should be a statement to the things you truly
care about: your children, your parents, your friends, your Church and
charities.
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55
years. In the havoc after a break up, many persons forget to have a
Will done to assure assets and decisions are taken out of the hands
or the ex spouse and ex spouses family.
In spite of all our resources and the assets we earn during our lifetime,
the vast majority of Americans do not take the time to create the legal
instructions to guide the court or a guardian upon their death. National
statistics indicate that more than 50% of Americans foolishly die without
leaving a Will. In the absence of a Will

or other legal arrangement to

distribute property at death, the problems often arise and a Judges decides
who gets custody of your children and handles your money. This process is
called the law of intestacy. The result can be lengthy delays in the distribution
of your estate, court battles between relatives and your children being raised
by someone you do not favor. Without a Will, your family will have to pay
substantial costs for accountants, attorneys, bonding companies and probate
fees.
In planning, make sure your assets go to your loved ones or favorite
charity, not an "ex". Therefore, you may wish to do the following:
1) Have an Estate Planning Law attorney prepare a Will to distribute your
assets to the people you care about the most. If you already have a Will,
prepare a new Will and have the old Will revoked. (Your estate planning
attorney will explain this to you.) Usually a new executor is selected, who will
also serve as funeral agent.
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2) Prepare a Power of Attorney to select someone to handle your finances if

you become disabled. Have your old Power of Attorney revoked. This means
your attorney or you should send notices to banks and your accounts to
indicate the prior Power of Attorney is invalid.
3) Select the correct beneficiary on assets you may own, such as stocks,
bank accounts, IRA, and other financial assets. Make sure you see the actual
change in beneficiary in writing. Dont rely on a phone call from the company.
Change passwords on all online accounts and notify them in writing that the
former spouse is not permitted excess to records.
4) Change your beneficiary under your own life insurance, whether whole life
insurance or term insurance.
5) Contact your employer's human resources and change the beneficiary on
life insurance, pension, stock options or other employee benefits. Note that if
you are not yet divorced, your spouse may have to sign a written waiver
permitting you to change beneficiaries.
6) Keep your personal papers at a location where an ex-spouse or the child's
parent can't steal or destroy them.
7) If you have minor children, nominate someone under a Will to serve as
guardian to the children. Although the surviving parent obviously has first
right of custody of children, they may not even want custody.
8) Make sure the trustee for any funds designated for your children is the
"right" trustee. The former in laws may no longer be the best choice.
9) Have your attorney prepare a prenuptial agreement, if you decide to get
remarried, so your children can inherit your assets. ) You want your children,
not new spouse, receives your assets if you pass away.
10) In New Jersey, if you are still married and living with a spouse, under
certain instances the surviving spouse has a right to "elect against the
Will".
The disinherited spouse may try to elect against the Will and try to
obtain one third of the estate. Your attorney can explain how you can
protect yourself and your children.
11) Have a new Living Will prepared to remove the ex and select a family
member you trust with last medical wishes. The Living Will should contain
new HIPPA language to advise doctors and hospital who should have access
to medical information.
If You Have No Will:
If you leave no Will or your Will is declared invalid because it was
improperly prepared or is not admissible to probate:
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1. People you dislike or people who dislike and ignore you may get some of
your assets.
2. State law determines who gets assets, not you
3. Additional expenses will be incurred and extra work will be required to
qualify an administrator-Surety Bond, additional costs and legal fees
4. You Lose the opportunity to try to reduce Estate Tax, State inheritance
taxes and Federal estate taxes
5. A Judge determines who gets custody of children. A greedy brother or
crazy mother in law could ask the court for custody.
6. It probably will cause fights and lawsuits within your family
7. The procedure to distribute assets becomes more complicated
8. The parent of your children may try to control the assets of your children
and not properly spend the money
ESTATE PLANNING TO PROTECT CHILDREN
There may come a time when an unmarried parent is unable, due to
physical or mental incapacity, to take care of their minor children. If a parent
dies, the minor children will need a guardian. In these circumstances, those
caring for the children, as well as the courts will need direction. By writing
and executing a Will, which includes instructions on guardianship one may
select someone, either individually or jointly, with the legal authority to act
for minor children and assume control over the assets of the children. Estate
planning, which includes the execution of a Will, is just as important for
persons with minor children as they are for senior citizens.
Guardians
Most individuals appoint the parent to act as Guardian of the person and
property of their minor children. It is suggested that your Will include a
clause which provides that in the event the other parent predeceases you, or
is unsuitable or ceases to act as Guardian of the person and property of your
minor children, you appoint a trusted family member or close friend to act as
successor Guardian of the person and property of your minor children.
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Trustee
Select a trusted person, your close relative or friends, who will invest and
hold your children's money. In your Will you can instruct the Trustee to apply
amounts of income and principal as they, in their sole discretion, deem
proper for the health, maintenance, education, welfare, or support of your
children or other minors. Direct that the trustee shall accumulate any income
not needed for the above purposes, paying and transferring the portion held
in trust to the beneficiary upon his or her attaining the age of majority or
whichever age you select.
Conclusion
While the preceding article contains possible items to be discussed
with your family, attorney and executor, the article is by no means
exhaustive. A number of these items may not be applicable in your
situation, and probably there are many others that are applicable. The
essential element is to spend some time now considering what you should
tell those most closely associated with you to facilitate their handling of
your affairs upon your death.
About the Author:

Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately

19 miles north of Princeton. He is author of the ABAs new book Wills and
Estate Administration
He often lectures for the American Bar Association and New Jersey
State Bar Association on personal injury, criminal / municipal court law and
practices to improve service to clients. He has published 125 articles in
national and New Jersey publications on legal topics. He has served as a
Special Acting Prosecutor in seven different cities and towns in New Jersey. He
has spoken on Wills and Elder law on numerous occasions to the Adult
Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and
Edison/Clara Barton Seniors and Perth Amboy Seniors.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He has
appeared in Courts throughout New Jersey several times each week on many
personal injury matters, Municipal Court trials, arbitration hearings and
contested hearings.
He is also a popular speaker for the American Bar Association's
General Practice Section and Law Practice Management Section.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817

(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com