One of the most important actions a person can take during life is choosing how they would like to dispose of their property at death. This applies to ANY person, not just business owners. The Freedom of Disposition is a cornerstone of American society and it is a foundational belief that people should be able to dispose of their property exactly as they wish to.
Luckily, there is a document that allows you to do just that – a Last Will and Testament. While a Will gives an individual the utmost freedom of disposition, these documents can be quite complex, and they require very specific formalities. They can be repeatedly re-written, amended, and revoked according to the individual’s needs and desires, however, making such revisions takes a lot of legal legwork.
Oftentimes, a person will decide to change their Will based on a change in circumstances – some of the most common changes being from new children (or grandchildren) or divorce. However, it is a common misconception that a change in a person’s life merely requires a small amendment to their Will. This is not actually the case.
As previously mentioned, the law concerning Wills and other estate planning documents, such as an Advanced Care Directive or a Power of Attorney, is very detailed and complex. These requirements are complicated since, once an individual has died, no one can speak to them to ensure that their wishes are being perfectly carried out! If there is a discrepancy in the estate planning documents, the law has been tailored to enforce the scenario with the smallest margin of error. However, this doesn’t always ensure that the individual’s intent is perfectly effectuated.
That reason, alone, is exactly why it is so important to take extra care in drafting and amending your estate plan.
For the purposes of this quick article, let’s use divorce as an example. Divorce is a very common change in circumstance that can have a colossal effect on your estate plan.
Why? Many people – especially couples with children – will name their spouse as executor of their estate as well as a primary beneficiary under their Will. While divorce does not completely invalidate your Will, if you get divorced and do not amend your Will to reflect the divorce (even if you still wish to keep your ex-spouse in your Will), your ex-spouse may be treated as if they died before you – meaning the property and responsibility you left to them will not legally be allowed to pass to them. Additionally, if you and your ex-spouse had a blended family – your ex-spouse having children from a prior marriage (i.e., your stepchildren) – those children may not be able to inherit in their place.
This could result in any property or responsibility, with your ex-spouse named as beneficiary, being treated as though it was never included in the Will. When your entire estate is not completely distributed by your Will, you will be labeled as having died partially intestate. Intestacy would place any property left to your ex-spouse at the mercy of the default intestacy rules in Georgia. Again, while these rules were designed to protect the freedom of disposition, they do not always succeed in duplicating your exact intent.
Of course, you can still choose to leave your ex-spouse as an executor or beneficiary! However, in order to do so, you must make a legally effective new Will, following the divorce, that provides for the former spouse.
Georgia law suggests that with changes in circumstances, such as divorce, the safest way to ensure that you maintain and effectuate your freedom of disposition is by executing a new estate plan or, at the very least, having an attorney oversee the complicated amendments required.
Enlisting an attorney to assist with these changes will ensure that you are in total compliance with the law, as well as ensuring that your freedom of disposition is protected and intact.
Changes in life circumstances can be overwhelming on their own. Sparks Law has years of experience with estate planning and would love to help you navigate any change in circumstance that may have an effect on your Will.