Everyone who is divorcing should have a last will and testament as part of their estate plan. It is especially important in a high-net-worth divorce. Without a will, you take a risk that your significant assets will unintentionally go to your soon-to-be ex-spouse rather than to the beneficiaries you want to have them. By not having a will, you can also negatively impact your children’s futures.
While you probably have a long list of things to think about and decisions to make related to your divorce, and drafting or revising a will may not be on your to-do list, it shouldn’t be overlooked during the process of ending your marriage. Consider speaking with an experienced attorney about your New Jersey divorce case and how a will can safeguard your interests for your specific circumstances.
Read on to learn seven reasons why you need a will before divorce.
1. TO AVOID INTESTATE SUCCESSION
If you don’t have a will when you die, property that would be subject to probate will pass to your beneficiaries through New Jersey intestate succession laws (N.J.S.A. 3B:5-3 and N.J.S.A. 3B:5-4). (Properties that do not pass through probate, such as living trusts and financial accounts with named beneficiaries, are not subject to intestate succession laws.) If your divorce is not yet final, the spouse you were in the process of divorcing could get everything . . . or a large chunk of it, depending on the circumstances and other family relations. This is very important to remember and understand.
If the divorce is final and you die without a will, your children will inherit. But why take the chance of not having a will in place and your children’s losing out on the inheritance you want them to have — or your parents, or siblings, or other people in your life who are important to you. And, without clear instructions to your children of what your final wishes were, you are setting them up for possible family in-fighting, which is not in your children’s best interest.
2. TO KEEP YOUR EX FROM GETTING YOUR ASSETS
When you draft a will and do not name your spouse in it, he or she may still get a portion of assets under an elective share claim should you die before the divorce is final, and depending on the circumstances. This is an evolving area of the law in New Jersey, however, so check with a New Jersey Divorce Attorney to see what parts of law changed on this and whether those changes are applicable to your situation. That said, this percentage may be reduced compared to what she could get through intestate succession.
3. TO NAME YOUR BENEFICIARIES
A well-drafted will ensures that your assets go to the people you want to have them. When your wishes are clearly stated in a properly executed will, this can serve to reduce potential fighting among beneficiaries and possible legal challenges. If your assets pass through intestacy laws, while your ex-spouse will not get them now that you are divorced, you will not get to decide who gets what.
4. TO DESIGNATE AN ESTATE EXECUTOR YOU TRUST
You aren’t required to name your spouse as executor in your will. So, one of the smart reasons to have a will is to designate someone you trust as executor to manage the distribution of your estate, and it probably should not be a named beneficiary either. Some people even choose an objective attorney as the executor. This removes control of your estate from your spouse, which is often wise when the marriage is on the way out.
If you don’t have a will that names an executor and you pass away without a judgment of divorce–meaning you are still legally married—your spouse will most likely become the administrator of your estate.
5. TO NAME A GUARDIAN FOR MINOR CHILDREN
If you have minor children, you can name a guardian in your will to oversee their care when you die. While the other parent of your children would most likely get full custody when you die so long as you are still married, if you should both pass away while your children are minors, designating a guardian will help ensure your children have someone to look out for their care and well-being. Of course, your spouse may have done the same in his or her will, so the court will then consider various factors to determine guardianship.
There may also be circumstances in which a spouse is deemed unfit, is hospitalized, incarcerated or for other reasons cannot properly care for their minor children. The guardian named in your will may be considered for their care.
6. TO SET UP A TESTAMENTARY TRUST FOR MINOR CHILDREN
If the children named as beneficiaries in your will are still minors when you die, your ex-spouse who has custody of them could gain control of managing the assets you’ve left them. To prevent this from happening, you can set up a trust in your will to your children’s benefit that will be created upon your death. You will name a trustee to oversee the trust per your instructions.
7. TO GAIN PEACE OF MIND
Having a valid and detailed will in place during divorce can provide peace of mind during an unsettled time. With this legal instrument, you can rest easier knowing that your estate will be distributed in line with your wishes. And if you die before divorce, you have reduced the chances of your spouse getting most or all of your assets or being the person controlling your estate. You will also know that your minor children are better protected should you die or should both you and your spouse die before children reach adulthood.
LEARN MORE ABOUT WILLS AND ESTATE PLANNING IN DIVORCE
It’s often hard for any of us to imagine a time when we are no longer here. What will happen to all the assets and properties that we worked so hard to gain? How can we ensure that they benefit the people that we most want to have them? Having a valid will and solid estate plan in divorce is the way that we help assure that our assets are distributed as we wish them to be. We also understand that the divorce itself and heading into that process is stressful enough, but dealing with your estate and modifying these documents should not be overlooked.
As experienced family law attorneys, we know that every divorce situation is unique. Some of the reasons for having a will that were outlined here may not apply to you. There may be additional reasons not discussed here for why you need a will before your divorce.
Our attorneys at [MFR] Men’s & Fathers’ Rights Divorce Lawyers in New Jersey can assess your individual situation and provide effective counsel to safeguard your assets and interests. Call us at (201) 880-9770 to schedule a confidential consultation.
