WHY A DIVORCED PARENT SHOULD CONSIDER A TRUST

Say you have minor kids, you pass away, and you leave money to be used for the benefit of your children (who are now under the full care of your ex). One option is, of course, to leave the money to your kids such that your ex manages the funds while the children are minors.

If you trust your ex, this is a viable option. Many people divorce and maintain trusting relationships with their ex-spouses.

Or…you can create a trust.

A trust can protect your assets from your ex’s control, even if your ex has custody of the children

A trust allows you to designate someone other than your ex – known as a trustee – to manage your money and only distribute funds for the benefit of your children as you have defined in the trust document. You can be creative with when and how the funds are distributed.

You can even specifically state that your ex is never to be named trustee.

A trust can keep your children’s information private

When a will is presented to the court after someone dies (which is required for the probate process to occur), it becomes a public document. Any information, including the names of your children or other beneficiaries, can be obtained by anyone.

A trust avoids the probate process (the process where the court oversees how your assets are settled after your death) and therefore protects the identity of your beneficiaries.

A trust allows you to customize how assets are received by your children.

You can choose to direct your assets to help influence your children toward long-term goals, such as getting a college education or purchasing a home. You can state that funds are to be used for that purpose. You can also instruct the trustee to pay out funds to your children when they reach a certain age (like 35) if you think that inheriting funds at a younger age may be too early for them.

A trust is completely revocable and can be altered at any time while you are alive.

Some parents feel that once they put something on paper, it is set in stone. Not true. A revocable living trust can be amended or even revoked at any time. You can provide instructions based on your current situation, and then decide you want to insert new instructions as circumstances change.

Parents who believe that trusts are only for very wealthy people should look again at the benefits that a trust can offer.

To schedule a free consultation, contact Lisa at (866) 980-0838.

OVER YOUR DEAD BODY! (YOUR EX GETTING YOUR MONEY – THAT IS)

There are multiple ways that people leave money to ex spouses, and some may surprise you.

Leaving your ex in your will after you are separated.

You decided the marriage needs to end, but you haven’t divorced yet, so you are separated from your spouse. You die. Surely the court knows that you don’t want your stuff to go to him or her! This is wrong, however, because if you were still married (even if you had filed for divorce already), your assets would go to your spouse if he or she is named in your will. (Or, even if not, see the prior post).

Virginia does have a law that automatically removes enforcement of a named spousal beneficiary (or personal representative) after the divorce is final, but not before. Note that there is no such thing as legal separation in Virginia.

Forgetting to update beneficiary designations after you separate or divorce.

When you die, the beneficiary designations you have made on any of your retirement or other financial accounts will most likely be followed, even if you had already divorced and did not remove your ex’s name.

Again, you might think, “Wouldn’t they know that I would not have wanted my money to go to someone I had divorced?”

Well, not really. Once you are gone, there is no way to know what you wanted done with your assets other than the instructions that you left with the financial institution.

So, it is vital that you update these designations as soon as you separate from your ex (even before the divorce is final) to make it crystal clear who should get your money.

Beneficiary designations should be updated for the following financial accounts:

  • Employer retirement plans
  • Individual Retirement Accounts (IRA)
  • Life insurance
  • Annuities
  • Health savings accounts
  • Transfer on Death (TOD) investment accounts
  • Payable on Death (POD) bank accounts

Leaving money to minor children.

If you and your ex have minor children together, and you die, the children will not be able to directly inherit any money you have left to them.

And, by operation of law, if you had custody of the children, custody will automatically go to the other parent (unless he or she is unfit for some reason as determined by a judge).

This means that your ex will be able to petition the court to receive access to the funds that you have left for your children. Your ex will likely be named as financial guardian, responsible for handling the funds on behalf of the children.

Depending on your situation, this may or may not be something that you are comfortable with. If not, I describe an alternate strategy in the next article.

To schedule a free consultation, contact Lisa at (866) 980-0838.

MISCONCEPTIONS ABOUT DIVORCE AND PROPERTY IN VIRGINIA

You might not think about estate planning when you are in the middle of a divorce – but you should. Remember, one of the primary purposes of estate planning is to make sure that your property goes where you want it to go, while you are alive and after you die. You can’t do this if you haven’t properly handled your property at the time of divorce (or even before). This article answers some common misconceptions about property and divorce.

Misconception #1:

I have separated from my spouse, but we haven’t gone through with the divorce yet. We’ve already divided our property, so what’s mine is mine and what’s my ex’s is my ex’s.

Truth:

Wrong. As long as you are married, if one of you dies, the other has a right to some of your assets in Virginia. Even if you have a will and you have named someone other than your spouse as a beneficiary, your spouse still has the right to elect to receive up to 50% of your estate if you were married at the time of your death.(The length of marriage and assets of the surviving spouse are taken into account to determine the percentage. See § 64.2-308.3 of the Virginia Code).

Virginia also allows the surviving spouse to receive other allowances from the assets of the decedent spouse’s estate (family allowance, exempt property allowance, and homestead allowance).

Bottom line, you are legally bound to each other as long as you are married, unless you both have signed a valid marital agreement waiving these rights (see next misconception).

Misconception #2:

My spouse and I are amicably separated and have already divided our assets, so we don’t need a marital separation agreement.

Truth:

Wrong. You should create a marital separation agreement and ensure that your soon-to-be ex specifically waives any claim to the assets that are yours. A marital separation agreement (sometimes called a property settlement agreement) is a document that defines who gets what in a divorce. It is binding the same way any contract is binding and is fully enforceable in court. This agreement becomes part of the divorce order that the judge signs.

These agreements are very important because they specifically define which assets belong to whom (and who is responsible for marital debt). While many divorcing couples may believe that the divorce (and post-divorce) will go smoothly, the fact is, this cannot possibly be known. Parties to a divorce change their positions regularly given all of the emotion involved, and having a written agreement will protect you in case this happens.

Misconception #3:

My ex and I have all of our property divided in the divorce decree, so I don’t need to retitle my assets.

Truth:

Wrong. A decree is simply the judgment of the court, but it does not have the effect of actually retitling the property itself. For instance, if a home is owned by both spouses and the court orders that the home be given to one spouse, then a deed needs to be executed that transfers the ownership of the home to that spouse only. Bank account assets need to be retitled, too. So does any debt.

Having properly executed documents and retitling property can save you a lot of grief during and after your divorce.

To schedule a free consultation, contact Lisa at (866) 980-0838.

WHAT IS PROBATE?

What is probate?

Probate is the court-managed process of settling an estate. The court oversees the process from start to finish. First, the court will review the will, if there is one, and appoint a personal representative(person who has authority to act on the estate’s behalf). Second, the personal representative must file accountings to the Commissioner of Accounts, a lawyer who has been appointed to conduct oversight on the estates in a particular jurisdiction. The paperwork that must be submitted to the Commissioner of Accounts is very detailed and must include copies of bank statements and other documents which show where all estate assets are held. This accounting occurs annually until the estate is settled. Each accounting costs a fee which has to be paid to the Commissioner of Accounts.

The Commissioner of Accounts serves as an auditor to ensure that estate funds are handled appropriately and settled prior to the closing of the estate. The process can be somewhat onerous.

What estates or assets are subject to probate?

The probate process is not required for any assets that:

1) Are held in trust

2) Are transferred via POD (payable on death) or TOD (transfer of death) accounts

3) Transferred directly to a beneficiary (such as a401k or IRA)

4) Held within a small estate, defined as not exceeding $50,000 in assets. (Virginia has a streamlined process for smaller estates).

What is the cost of probate?

There is a cost between $0 and $30 dollars for the court to review and qualify the will and also to appoint a personal representative.

The accountings to the Commissioner of Accounts are more costly with the initial filing fee costing from hundreds to thousands of dollars depending on the size of the estate. The subsequent accountings can cost up to $275 each time(required annually). Click here to see the fee schedule in place now.

A bond is often required to be posted by the personal representative which also requires an annual security fee to the bond company (the amount depends on the size of the bond which is determined by the size of the estate).

What are the pros and cons of allowing my estate to go through the probate process?

The probate process can be costly and frustrating, especially for medium to large estates. All wills presented to the court for probate also become public record, so they can be viewed by anyone. However, thousands of estates go through the probate process regularly. If you decide that you do not want to create a trust, the best option is to make sure that as many assets as possible are not subject to the probate process(such as by setting up POD/TOD accounts where assets transfer directly to your desired beneficiary or beneficiaries).

Contact Lisa Mathews to schedule your free consultation today at (866) 980-0838.

DO I NEED A TRUST OR IS JUST A WILL OK?

The best answer is: it depends. A trust is a wonderful tool that brings a lot of peace of mind, but it may not be right for your individual situation.

What is a trust?

A trust is an entity that holds assets for your benefit and the benefit of beneficiaries. The trust document defines the powers granted to the trustee (the person who executes terms of the trust) and the parameters by which assets are distributed.

Trusts are versatile in that they allow for very tailored planning for a disability during your life and asset transfers after your death.

Do the instructions in the trust document apply to all of my assets?

The instructions in the trust document only apply to any assets owned by the trust. Assets must be titled into the name of the trust to be subject to the terms of the trust document. Therefore, trusts require a bit of work when they are created to ensure that assets are retitled appropriately.

But, it is important to note that assets retitled to the trust are managed exactly as they were before and remain under your complete control as the trustee. Once you die or become incapacitated, your named back-up (successor) trustee becomes responsible to manage the trust assets according to your wishes in the trust document (no court involvement required).

What should I consider in deciding if I need a trust?

Those who want a simpler initial process when creating an estate plan and who do not seek the other benefits of a trust may choose to simply execute a will. Wills do serve an important purpose, though they have some disadvantages to a trust (see the graphic at the bottom of the page).

A major disadvantage associated with wills is the probate process that most estates must adhere to.

Many people choose to establish a trust if they have minor children, or any children who are not yet mature enough to inherit assets. Because a trust can hold assets for many years, it is common for people to direct that their children receive their inherited assets at an age older than 18 or 21. For instance, a trust may instruct that children will receive half of the inherited assets at the age of 25 and the other half at, say 30 or 35. While the children are younger, the trust defines who is responsible to make payments for the children’s expenses and what types of expenses can be paid by the trust. Such flexibility is not available in a will alone and provides peace of mind to parents who do not want their children to blow all of their money at the age of 18.

Who should consider a trust?

A trust should be seriously considered if:

  • You have minor children.
  • You desire for your real estate to be divided among multiple beneficiaries.
  • One or more of your beneficiaries has special needs.
  • You want to protect the identities of your beneficiaries.
  • You do not want your beneficiaries to have to deal with the probate process after your death.
  • You want to ensure someone can easily manage your assets for you if you become unable to manage them yourself.
  • You have a smaller estate.
  • You do not have minor children.
  • You do not have real estate or you have executed a “transfer on death” deed (which transfers ownership immediately upon your death to a beneficiary).

To schedule a free consultation, contact Lisa at (866) 980-0838​.

WHAT IS ESTATE PLANNING ANYWAY?

What is estate planning?

Estate planning is the process of planning for the handling of your assets in case of disability or death. 

I don’t consider myself to be wealthy. Do I even have an estate?

Yes! Everyone has an estate. An estate is simply the combination of all of your assets and property. If you own anything at all, you have an estate!

What is involved in estate planning?

A major goal of a well-executed estate plan involves deciding who can make decisions for you if and when you are unable to make them for yourself. 

Estate planning includes executing a will, which defines who should inherit your estate and who has the authority to settle your estate when the time comes. 

It also names a guardian in case you have children. Most estate plans also include a power of attorney (a document where you designate someone else to make financial decisions on your behalf) and an advance medical directive (a document that 1) states your end of life instructions and 2) appoints someone to make medical decisions for you if you are incapacitated). An estate plan may also include a trust document (see the article on page 3) which allows for a smooth transition of management of your finances to a trusted individual should you become disabled or die.

I know I need a will, but why? What are the consequences of not having one?

If you don’t have a will when you die, Virginia’s default laws kick into effect, which means that Virginia, and not you, decides what happens to your assets. Further, by not executing a will, you are letting the court decide who will manage your affairs and who will be the guardian of any children you may have. This can be a lengthy and expensive process.

What if I am uncertain about my wishes or I change my mind?

Any estate plan can be updated at any time. Your will is always fully revocable, and the vast majority of trusts are revocable as well. You can also change beneficiaries or agents named to handle your affairs whenever you want. 

To set up a free consultation, book an appointment with Lisa at (866) 980-0838.

Get your free Advance Medical Directive!

Haven’t gotten around to creating your estate plan yet? I get it, there is no good time to meet with a lawyer. 🙂
I’m giving away a free Advance Medical Directive (with full instructions!) to get you started. This is the most important document in an estate plan and can save your loved ones a lot of grief.
Click on the link below request this document to your inbox. No strings attached.
https://www.peaceofmindforvirginians.com/LcF392
Lisa

Benefits of Creating an Estate Plan

COVID-19 has prompted many to contemplate important topics such as end-of-life decisions and estate planning. By making these choices and preparations in advance, families can ensure that they are carrying out the wishes of their loved ones and also prevent some of the difficulties that are often faced in these circumstances. The resources below touch on some basic questions regarding estate planning and the many benefits to creating a plan.  

Estate Planning Info & FAQs

This resource from the American Bar Association provides some background on the estate planning process and explains the documents that are typically included in an estate plan. 

6 Reasons Why You Need an Estate Plan

“While end-of-life planning may seem morbid, an estate plan can protect you and your assets not just after you die, but during your life as well.”

Leaving a legacy: Why everyone needs an estate plan

This resource expounds on some of the benefits of creating an estate plan and touches on some important issues to consider when beginning the estate planning process.

The expertise of an attorney can ensure that an estate plan is drafted and executed according to your wishes. State laws vary, and unexpected issues can sometimes arise if a “do it yourself” approach is taken in drafting a will or other key documents. Ultimately, an estate plan can serve as a roadmap for families confronting difficult end-of-life decisions or the division of assets. Advance preparation can help to ease mental and emotional burdens as uncertainties and guesswork are replaced with clear directives and plans.

Resources for Children and Divorce

Just as divorce is a life-altering event for adults, it can be a difficult and confusing time for children as well. Adjustments such as moving, changing routines, and trying to make sense of the process can lead to a mix of emotions and reactions. As you try to help your children navigate through this challenging event, it may be helpful to utilize some of the resources below.

Helping Your Child Through a Divorce

This link offers some general guidance for breaking the news to children and helping them to cope with and process emotions. It also provides tips for creating consistency for your child(ren) and ideas for helping them adjust to a new living arrangement.

Helping Children Cope with Divorce

This resource also shares ideas for breaking the news of a divorce to children and breaks down possible reactions by age group. It shares additional ideas about how to help children adjust, such as working with your child’s school and maintaining contact with extended family.  

Activities for Helping Children Deal With Divorce

This link is part of a larger resource designed for families that are experiencing separation and divorce. Activities such as drawing pictures, exercising, and writing stories with your child(ren) can help to nourish your relationship and provide positive emotional benefits. The “Related Publications” section on the right side of the page has additional resources from the guide, including age-specific tips and ideas for healthy communication.

Sesame Street in Communities: Dealing with Divorce

This resource from Sesame Street includes videos, printables, activities, and articles to support children from ages 0-6 as they cope with divorce. At the bottom of the page, there are additional resources for related topics and a link to an app with resources designed for the caregivers of children that are 2-8 years old.