Take Control Blog

The Need for a Trust and Will Post-divorce

As a married couple, you and your former spouse may have had a revocable living trust and/or will in place.  Regardless, after a divorce, these documents take on an even bigger sense of urgency.  And the fact is that most married and divorced individuals put this off due to the perceived cost and difficulty.

Nothing could be further from the truth or cost your estate, loved ones and children more money and grief. A will allows you to:

  1. Ensure that your possessions will be distributed as you wish
  2. Appoint and outline powers of an executor and/or trustee
  3. Appoint a guardian for minor children
  4. Specify funeral wishes
  5. Upon your death, expedite the legal process while reducing legal expenses

Besides the benefits outlined above with regards to a will, a trust allows you to:

  1. Plan for mental disability prior to death
  2. Estate planning for minor beneficiaries
  3. Keep your estate plan private (a will upon being filed with the court becomes a public record)
  4. Consolidate real estate outside of your home state under one estate
  5. For second or later marriages, insures that each spouse’s estate will go where he or she intends

Bottom line, anyone who is single and has assets titled in their sole name should consider a trust.  The two main reasons are to keep you and your assets out of a court-supervised guardianship and to allow your beneficiaries to avoid the costs and hassles of probate.  And now that you are divorced, all your assets will likely be titled in your sole name.

So why do I need a will and a trust?   If you have a properly constructed a revocable trust, you may not need a will.  At the time of your death, your property will be managed and distributed according to the terms of the trust you established.

But what about that piece of property that you recently acquired, forgot about and neglected to include in the trust?  Without a will, any assets that are intentionally or inadvertently left out of a trust will pass through the intestacy statues rather than according to the terms of your trust.

As a newly divorced individual, you can easily see why a proper trust and will are so critical, especially where minor children are involved.  The cost required is well worth the money saved and the peace of mind delivered to your family and heirs after your death.

Important note:  If there was a trust and/or will in place during the marriage, make sure that the Marital Settlement Agreement or Final Judgment contains specific language rescinding those documents.