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Steps to Take Now:
- Make an appointment with a collaboratively-trained estate planning attorney. Collaborative training does not increase your attorney’s fees – it just ensures your attorney is equipped to offer options that may be needed, that another attorney may not consider. It’s possible that your divorce attorney may be trained to handle your trust and estate matters as well. If you need a new, capable estate planning attorney, we gladly offer referrals. Couples often prefer to continue to work with the estate planning attorney they had prior to divorce. However, the attorney who prepared a joint plan, could face a conflict of interest in helping both or just one of you with a new estate plan, or a Bridge Plan that would hold you over until your divorce is finalized. Your estate attorney will be able to tell you if they can represent either, both or neither of you.
- Gather your estate planning documents.Ask your estate attorney for a list of the documents needed. To assess the impact on you and loved ones during and after divorce, locate your important estate-related documents before meeting with your estate attorney. If you have no estate plan in place, you still need to create a trust and plan that’s ready to immediately “hold” and protect your assets once the divorce is finalized. A trust is needed to protect your beneficiaries avoid the significant costs and taxes of probate. For example, a grandchild in college could lose financial aid benefits if the trust transfers funds prior to graduation.
- Check your beneficiary designations.Make a list of your current accounts, the institutions and their numbers, including bank, brokerage, IRA, and other accounts. Note who is named as a “pay-on-death beneficiary” for each account. Share this with your estate planning attorney. Do not make any changes that may violate your divorce ATROs (Automatic Temporary Restraining Orders). Note any accounts without named beneficiaries, and be sure to discuss this with both your divorce and trusts and estates attorneys.
- Identify your Trusted People.When considering a new or Bridge Estate Plan, you may name your former (or soon-to-be former) spouse as one of your trusted people or you may wish to name someone else. Avoid making your selected person a litigation target by carefully considering your beneficiaries’ roles and relationships to that person, and to each other, e.g. is the person already a target for jealousy and resentment? Is there reason to imagine that two beneficiaries might gang up on that person? Make a list of the people in your life on whom you can depend to follow your wishes and to skillfully abide by the details of the law in the event of your death. Make sure you first ask your trusted people if they are willing to assume these responsibilities before presenting their names to your estate planning attorney. Select trusted people:
- Whose decisions are likely to be respected byall beneficiaries,
- Who are likely to be skilled at helping beneficiaries avoid unnecessary legal disputes that will drain the assets you are passing on to them,
- Who are not likely to be resented, challenged and targeted by litigation due to existing relationship challenges with siblings, children and/or other beneficiaries, and
- Who are diplomatic, effective listeners skilled at considering and valuing multiple, different points of view.