With all the intrigue of post Judgment Enforcement, Qualified Domestic Relations Orders (QDRO), Modification, Allocation Of Parental Responsibility And Scheduling Of Alternate Parenting Time, there is still one issue that is generally ignored, death. It is essential that all Wills, Trusts, Health Powers & Durable Powers of Attorney must be reviewed and modified to reflect the changes in the family as a result of the divorce.
While a Tenancy By The Entireties is severed by the entry of the Judgment for Dissolution of Marriage (JDOM), Joint Tenancy is not changed by the JDOM. In addition to correcting deeds to be filed and recorded of record, there is the frequent transfer of real estate into a Trust (during the marriage) and forgetting that fact at the time of divorce.
Use of a Living Trust is the best plan a divorced parent can adopt. You can effectively control not only the distribution of your estate, but because it is “in trust” before your death, the value and terms of the Trust can remain private. A simple Will that provides for both a Guardian of the estate of the minor children (court must follow) and a Guardian of the Person of the child (which can be overruled by the surviving parent if that parent so desires.) Your ex-spouse probably will be named as Guardian of the person of a minor but you can control who is “Guardian of the Minor’s Estate”. The Will itself will then “pour over” into your Living Trust. Another advantage of a Trust is that, if you are getting title to real estate, why not put it into your own Trust. The same is true with investment accounts, brokerage accounts, bank accounts etc. This way very little will be subject to public scrutiny.
Since you are the Trustee of your own Trust during your lifetime, there are no annual costs or expenses; and if you keep the Trust as simple as possible (during your lifetime) there are no separate tax returns or reporting requirements.
Arnold D. Goldstein, Attorney at Law