Trusts and Divorce

Best Trust Lawyers in Phoenix, AZ

When you get a divorce, its effects are more than just the status of your relationship. One area in particular that is affected by divorce is estate planning, which includes trusts, wills and any other estate planning documents. What happens to these documents when a couple gets divorced? This is a great question to take to the best trust lawyers in Phoenix, AZ at Kamper Estrada, LLP.

Wills and Divorce

Depending upon what state you live in will determine how a will is interpreted after a divorce. In California, Arizona and Texas there are laws in place that prevent an ex-spouse from benefiting from an inaccurate will. Some states act in the same way as if the ex-spouse is dead, while still other states eliminate the provisions mentioning the ex-spouse and go to the names next on the list. These actions are only applied if the will goes to probate. If the will does not go through probate, there are no assurances that the ex-spouse provisions will be taken into account.

In addition, some states will even offer a way for the ex-spouse to challenge the will and ask for a legal portion of the assets. If a will has been revised, the old will is revoked and the challenge will not be possible.

There are a few states where if the couple created the will while they were married and did not change the will after divorcing, the provisions of the will is still held up if either person dies.  For example, if the husband dies and leaves everything to his ex-wife while they were still a couple, the ex-wife would still receive everything as indicated in the will. It is critical to understand the laws in your state concerning divorce and wills. Wills can be challenged, but this can then be tied up in probate for a very long time.

The best way to avoid this confusion is to redo your will after a divorce. Most states require that the old will and all copies be destroyed. You can also add a clause in the new will that revokes any previous wills.

Trusts and Divorce

The type of trust that exists will determine whether or not it can be updated, or entirely revoked and then recreated. If the couple created an irrevocable living trust, then regardless of the divorce, it cannot be altered. When you create an irrevocable living trust, all assets go into the trust and the control of these assets are immediately signed over to the appointed trustee. This is because when you create an irrevocable living trust, the moment it is signed it becomes active and now the trustee is responsible for the administration of the trust.

Usually an irrevocable trust is created by spouses to benefit their children. If their intent doesn’t change and neither spouse has access to the trust, then it remains as is.

If there is a revocable trust, both spouses still retain control over the assets. They are able to change the terms of the trust or even dissolve the documents and take out the assets. If this happens, the assets need to be detailed in the divorce documents and required taxes paid.