Generally speaking obtaining a divorce is not the end of the process but rather a beginning of a process which allows for legal alterations to separate the former spouse’s lives. Following a divorce one may have to transfer many assets, divide accounts, and divide retirement plans, etc. which may significantly alter how you wish for your assets to be distributed in your will, whether your ex-spouse is listed as a beneficiary, or whether or not your ex-spouse may be able to represent you as an executor for your estate. In order to guarantee that your will arrangements are carried out to fulfill your wishes you will need to revamp your will.
Revising Your Will
Following a divorce you will need to revoke your former last will with a fresh updated copy to outline your wishes. In re-writing your will you may need to alter large provisions in your will that may concern writing your ex- spouse as a beneficiary, alter which beneficiaries receive property, nominate an executor, or denote an individual to act as a guardian for minor children. Altering these provisions ensures that your ex-spouse will not receive benefits from the estate that they may have been provided during the previous marriage. In some states even if a will is not revoked or altered then the state law can prevent the ex-spouse from receiving an inheritance despite the fact that they are still listed to receive benefits outlined in the will. The state of Georgia recognizes a divorce as the dissolution of the relationship between the parties and will not honor the ex-spouses ability to receive as a beneficiary of the state unless the testator/ testatrix, creator of the will, explicitly recognizes that the divorce has taken place and specifically mentions to override state law and allow for the ex-spouse to benefit from the will. Georgia Code OCGA Section 53-4-49, allows for an ex-spouse to benefit from a will so long as the creator of the will identifies specifically that the ex-spouse is still intended to remain within the contract. The probate court will not however be able to alter any terms of inheritance that are not covered under that particular legal system; such as, in life insurance policies, or in social security. Items that may not be included for divisions within a will are listed under Georgia Code OCGA Section 53-4-49. Changing your ex-spouses ability to benefit under non probate matters would require removing beneficiaries from all concerning accounts following a divorce; otherwise the ex-spouse will remain as the listed inheritor of such accounts.
Name Alternate Beneficiaries or New Beneficiaries
In most cases prior to the divorce the testator/testatrix named their marital partner as the primary beneficiary to receive an inheritance of their state and then their next of kin, children, and then other relatives. Following a divorce on the other hand and individual may wish for the majority of these inheritable assets to go to either children or other family members. In altering your last will you will need to redistribute the property of your will. It may be necessary to list new beneficiaries and alternate beneficiaries to ensure that some properties will be distributed in the absence of the original beneficiary.
Changing the Executor for Your Will
Again, it is common for people to list their significant partner in a marriage as the executor of their will, but to wish to retract this capability following a divorce. In the state of Georgia following a divorce an ex-spouse will not be permitted under state law to serve as an executor to the will. However, it is important that all changes are modified to ensure that your wishes are carried out and not to simply rely on state law which would only be applied to the situation in the instance that someone else challenged the ex-spouses ability to act as an executor of the estate. In most cases if there is a secondary alternate for the executor position the listed alternate would be responsible for acting as an executor to the will and estate. Following a divorce it is important to change this executor position to someone who you feel would act in accordance to your will and to possibly act as a secondary or third alternate for the position of executor in your will.
Naming a Guardian for Your Children
As a part of your will you may name someone to act as a guardian of your children. Following the death of both parents a judge may select a guardian to act on the parent’s behalf as outlined in a will, but this is generally a very rare circumstance. Following a divorce however a judge may take into account the primary custodians will and attached letters if the creator of the will does not feel that the other party should receive sole custody of the child following their death. Note a judge may only take this into consideration and will not immediately grant this unless he or she also feels that the guardianship placement is in the best interest of the child. Generally a judge will only respect these wishes if there is a long standing pattern of behavior that demonstrates that the other parent is unfit such as drug addiction, abuse, neglect, abandonment, etc. Documentation of such will need to be provided to substantiate the reasons why you believe that another guardian should receive that child instead of the other parent such as a formal letter attached as part of the will. You may note for any person of your choosing to be listed as a guardian of a minor child within the will and a court hearing will be made necessary to determine who receives custody of the child following a review of evidence and will/letter.
Don’t Forget the Things Outside of a Will
Outside of a will you will still need to fulfill all agreements and orders for the separations of marital property which can include, life insurance policies, retirement accounts / pensions / 401(k)s / IRAs, “pay on death” bank accounts provisions, and “transfer on death” brokerage accounts provisions. You may also want to make changes to or obtain a new Power of Attorney. If you believe that your estate plan may be large then you may need to appoint two separate powers of attorney. You should have one power of attorney for healthcare and another for financial matters. If you have formally appointed your ex-spouse the authority of power of attorney for these documents already, then you will need to have an attorney revise the documents separately.
If you have recently obtained a divorce and need to update your will and or estate plan the attorneys of the Coleman Legal Group are knowledgeable about both divorce and estate law and will be able to assist you in updating your will to better fit your personal needs following a divorce.
Obtaining Experienced Legal Help
If you are facing the need to revise your will, powers of attorney, healthcare directive and other estate planning documents, call us at 770-609-1247 to speak to one of our experienced Georgia estate planning attorneys. Contact >>
