In Business Formation, Business Law, Employment Law, Estate Planning, Internet Law

Estate planning is important, especially following a divorce. By the time you finalize your divorce and sign the dotted line, a chapter of your life has come to a close. Your taxes will change, and if you have young children, your schedule might look a little different. In the conclusion of your divorce, the validity of your Will may have also changed.

Will Requirements

As you have entered a new stage of your life, your wishes for what happens to your property when you die has probably changed, and your will probably does not reflect your updated desires.  In South Carolina, the legal requirements include that a Will must be (1) in writing; (2) signed by the testator or signed in the testator’s name by some other individual in the testator’s presence and by the testator’s direction; and (3) signed by at least two individuals each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the Will. S.C. Code § 62-2-502. A testator is the person creating the Will. While that sounds like an easy three steps, there is a myriad of laws and regulations to create a valid and enforceable Will, and without the guidance of an attorney, the process will leave you overwhelmed and anxious.

What should you do? Contact an estate planner attorney with a copy of your divorce agreement.

Legal Considerations

Your attorney will discuss multiple topics with you, but here are a few issues you should be sure to address with your estate planner:

  • Your health care power of attorney: Unless you plan on ex-spouse making your healthcare decisions when you are unresponsive in a health emergency, your health care directive is in need of an update.
  • Your life insurance policy: Who is your beneficiary of your life estate policy when you die? Have you switched this over to a trust for your kids or other family members.
  • Your power of attorney: Similar to your health care power of attorney, your ex-spouse might still have a power of attorney for you. If so, he or she still can make certain financial and legal decisions on your behalf.
  • And most importantly…..Revision of your Will and Trusts.

Chances are you do not want your ex-spouse to serve as your executor or trustee. If they are still listed as your executor or trustee, they might still retain the legal authority to divvy up assets after you die. In South Carolina, divorce does not revoke your Will, nor does getting divorced reinstate a Will you might have had before your previous marriage. Without a proper Will, your property is subject to distribution through Intestacy Laws, which means the state might seize your assets when you die.

If you enter into a new relationship, you might want to include them in your next Will regardless of whether or not you pursue marriage with them. Alternatively, if you do get re-married, do you want your step-children to receive an inheritance? What about your new spouse? These are important questions to reconsider as you speak with your estate planner.

Having an active Will that reflects your personal intentions for your estate puts you in control. Coming out of a divorce is never an easy transition, but give yourself the assurance that your children and loved ones will be provided for when you are no longer here.

About the Author

George Fowler is a probate attorney with Henderson & Henderson law firm in Charleston SC. He helps for Wills or Trusts i nquires and focuses on helping people make the most effective decisions when planning for the future.

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