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Divorce, Wills, Trusts, and Estate Planning and the Estate Planning Divorce Attorney

Divorce estate planning can be a delicate matter. Our experienced divorce estate planning attorneys can assist the divorcing couple by developing an estate plan that reflects their needs, the needs of the children and the need for oversight to satisfy each party that the other is keeping up with the divorce settlement promises. Our divorce estate planning lawyers have many tools to assist in divorce estate planning, including specialized terms in divorce wills, specialized terms in divorce trusts, powers of attorney that work around situations created by the divorce and many other tools that are designed to defuse concerns and disputes that might otherwise derail a divorce related estate plan. During a Divorce the advice of a skilled divorce estate planning lawyer can put minds at ease, and save time and money that might be spent in divorce court.

Frequently Asked Questions

We are filing for divorce, but my spouse is named as my Surrogate in my living Will, should this be changed?
If you feel uncomfortable having your spouse continuing as the person who consults with your doctor in determining if you should stop receiving health care, you should immediately execute a new document. This concern is universal, whether you are filing for divorce in Philadelphia, Burlington County, New Jersey or Palm Beach County, Florida you have a right to select the person who will make this decision with your doctor…and that person does not have to be your spouse. In some places this document is called a Health Care Directive and in others a Living Will. Our skilled divorce estate planning lawyers can assist you with deciding who should have this power, what the power includes and with drafting your Living Will or Health Care Directive.

What if I become disabled during the divorce process?
A qualified divorce estate-planning attorney will advise you about executing a new Power of Attorney prior to and during your divorce. Your existing Power of Attorney may give your spouse the power to sell your assets, access your accounts and obtain private information. Your spouse could abuse this power, which would be an improper use of the document, but once done it is difficult to reverse. Our divorce estate planning lawyers will discuss with you the need for a power of attorney during the divorce and to whom you should grant this power. Should you become incapacitated, the person you have given the power, your “Agent”, has the power to care for you both monetarily and medically, even if your divorce is not final.

Should I revoke my Power of Attorney before the Divorce?
A General Power of Attorney can be a nasty weapon during a divorce. A qualified divorce estate planning lawyer will inform you that, while the Power of Attorney is supposed to be used only to care for you, it does give your spouse the power to access your accounts, sell assets and to gather private information. Revocation of the document by your estate-planning lawyer will include not only revoking the old document, but also informing all your financial institutions of the revocation. This is especially important if your spouse has a signed copy of the power of attorney.

What if I have named my spouse as Beneficiary of my 401(k) and trust?
You should consult with your divorce attorney, but our divorce estate planning lawyers will explore with you the option of changing your 401(k), IRA and trust beneficiary designation from your spouse to other persons or trusts.

What if my spouse is named as trustee over my children’s trusts?
Should you die, your will might name your spouse as trustee over assets meant for your children. Our divorce estate planning attorneys will review the wisdom of this nomination, given your specific situation. Your former spouse may be a wonderful trustee and protect your children’s assets, or they may not. If you decide that your former spouse should not serve as trustee, we will explore the various options available to help insure your children’s inheritance remains secure.

When during the divorce process should I change my will, power of attorney and living will?

You should consider changes immediately. Should you die or become incapacitated, the plan stated in your documents becomes permanent. This plan may reflect your current wishes, or it may not. Our divorce estate planning lawyers will explain to you that the plan you put in place today can be changed whenever you wish. Further, doing your estate plan early in the divorce process may reveal issues that need to be addressed in your separation agreement or final divorce decree. It is better to discover these issues early in the process.

Should I just tear up my current Will?
Though it might feel good, not having a Will might be worse than your existing Will. If you have no Will, your assets pass through intestacy and your spouse could get more than your current Will allows, and gain control over what your children inherit. The best answer is to quickly draft a new Will with your estate-planning lawyer, taking the divorce and all its issues into consideration.

If I die before the divorce is final, will my spouse inherit all my assets?
Whether you reside in Bucks County, Pennsylvania, Broward County, Florida or Atlantic County, New Jersey the law does not require you to give all your assets to your spouse. But, you may have your assets arranged so that if you die, your spouse will inherit everything. Our divorce estate planning lawyers can work with you to shelter as much of your assets as possible from your spouse’s claim. Consulting with your divorce estate-planning lawyer early in the process provides you with information that will assist you in your negotiations and should you die during the divorce process, help transfer as much as legally possible to others besides your spouse if that is your wish.

Can I leave assets to care for my spouse, but then have these assets pass to my children at the spouse’s death?
Our divorce estate planning lawyers often find that even in divorce, spouses wish to provide care for their former-spouse. Sometimes assets exist, like the family home, which cannot be sold but both spouses want to shelter the asset from creditors and future spouses. They also want to make sure the asset passes to the children at their deaths. In either case, trusts can be formed that allow one spouse to enjoy the asset or its income but, at the spouse’s death, the asset passes to others (often the children). This technique has been used in New York, Pennsylvania, New Jersey and in Florida. Furthermore, the spouses could divorce in Montgomery County, Pennsylvania and then die residents of Camden County, New Jersey, and the result remains unchanged.

How do I make sure my spouse does not control my children’s inheritance?
After reviewing your specific estate-planning situation, our divorce estate planning lawyers can provide you with several options to help keep your spouse from controlling the assets you leave to your minor children. Often this will include forming a trust for your children (excluding your former spouse) that names a trusted person or institution as trustee and protectors to watch over the trustee. No matter if you are in Bucks County, Pennsylvania, Gloucester County, New Jersey or Center City, Philadelphia, our divorce estate planning attorneys can find the right team to protect your children’s money from your former spouse.

I have minor children, what estate planning concerns do I have now that I am getting divorced?
The estate planning concerns of most parents of minor children in divorce include guardianship, inheritance and control. Guardianship includes who cares for your children if you have both died and visitation of your family should you die, but your former spouse survives you. Inheritance includes getting assets to your children at your death, even if you have remarried. Control issues include whom invests and distributes the assets you leave to your children should you die. Our estate planning divorce attorneys can help you through these issues.

What if my parents have included my spouse in their estate plan?
Though your parents are free to do as they wish, your divorce will likely mean they will change their documents. Talk to them about these changes. Whether they are residents of Palm Beach County, Florida, Camden County, New Jersey or Philadelphia, Pennsylvania, they can form a trust for your benefit that is free from the reach of your spouse. This same trust can pass assets to your children at your death free from creditors, lawsuits and your spouse’s control. Our divorce estate planning lawyers can help them with these trusts.

What if my spouse is named as beneficiary of my life insurance?
We would consult with your divorce attorney, but various options should be examined. These options include changing beneficiary designations to name trusts for your children and transfers of the existing policy into irrevocable trusts. New Jersey and Pennsylvania allow trusts that can shelter the insurance proceeds for all future generations. Our divorce estate planning attorneys can walk you through the available options.

How can I prevent my minor children from ending up in the custody of my former spouse?
In the end, all decisions surrounding custody are based on the best interests of the child, but you can provide for an alternate guardian in your Will and clearly state your reasons for believing your ex-spouse would not be an appropriate guardian for your minor children. Though custody procedures will appear different between Burlington County, New Jersey and Montgomery County, Pennsylvania, they both will take your wishes into consideration as long as those wishes are clearly stated.

What if I become incapacitated, say in a car accident, and my child needs immediate medical care?
Our divorce estate planning lawyers can help draft a temporary medical power of attorney that allows a second person to step in and make medical care decisions for your child should you be unable and your former spouse unavailable. These documents began in New Jersey, but we have modified them to fit the rules of Pennsylvania, New York and Florida.

Our divorce decree will state that my spouse has to carry life insurance for our children. How do I make sure the payments are made and the beneficiary remains my children, not my spouse’s new spouse?
It is not uncommon for a former spouse to die and for the children to find that life insurance was dropped or a beneficiary designation changed. Often the children are left with nothing or with extensive litigation. All this can be avoided by having the life insurance owned by an irrevocable life insurance trust. The terms can vary, but often both spouses have the ability to monitor the policy to verify payments are made. The beneficiary is the trust, which benefits the children. Our divorce estate planning lawyers can provide you with trust options that will fit your given situation.

Our divorce decree requires me to carry life insurance for my children, but how do I prevent my ex-spouse from controlling this money should I die?
Our divorce estate planning lawyers can design a trust to hold the assets for your children outside your former spouse’s control.

Is there a quick, divorce estate planning checklist?
1) Review and replace all existing powers of attorney and living wills. 2) Review and revise all estate planning documents, including trusts and Wills. 3) Review all beneficiary designations, including life insurance, qualified plans (401k, IRA, 403b) and pensions. 4) Review your designation for successor custodian/trustee of your children’s college savings plan and custodial accounts. 5) Verify that a trustee and protector protect assets left for children. 6) Verify guardianship for your children is clear, both long terms if you have died and short term if you are incapacitated.

Our offices are located in Center City Philadelphia, Montgomery County, Doylestown, Allentown, Voorhees, New Jersey, and New York. We provide legal representation to clients in all counties in the state of Pennsylvania and New Jersey.

All Counties we serve in Pennsylvania:

Adams County, Allegheny County Armstrong County, Beaver County, Bedford County, Berks County, Blair County, Bradford County, Bucks County, Butler County, Cambria County, Cameron County, Carbon County, Centre County, Chester County, Clarion County, Clearfield County, Clinton County, Columbia County, Crawford County, Cumberland County, Dauphin County, Delaware County, Elk County, Erie County, Fayette County, Forest County, Franklin County, Fulton County, Greene County, Huntingdon County, Indiana County, Jefferson County, Juniata County, Lackawanna County, Lancaster County, Lawrence County, Lebanon County, Lehigh County, Luzerne County, Lycoming County, McKean County, Mercer County, Mifflin County, Monroe County, Montgomery County, Montour County, Northampton County, Northumberland County, Perry County, Philadelphia County, Pike County, Potter County, Schuykill County, Snyder County, Somerset County, Sullivan County, Susquehanna County, Tioga County, Union County, Venango County, Warren County, Washington County, Wayne County, Westmoreland County, Wyoming County, and York County.

All Counties we serve in New Jersey:

Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County and Warren County.

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