Making out a Will

[slimmiller]

Hello all,

(Hope I am posting this on the right board, its about legal issues but not related to splitting up)


I have a question regarding making a Will. I am interested in hearing some ideas, what worked for you, specific requests etc that one should be cognitive of considering that the other parent in many of our cases are not functioning right on many ways since they have BPD.

I want my kids to be cared for should something happen to me and also minimize what she can get her hands on. I know from watching her spent the child support she receives for her oldest son (My stepson) on trips, clothe for herself etc that she will never spent the money first and foremost on the kids should she get her hands on it. That being said, do any of you have similiar concerns and if so how did you address it? What is the best way to go about it?

I am seeing an estate attorney soon and want some ideas before hand

Thanks

[GaGrl]

Decide which relative or friend or financial or legal representative you wish to have as a financial trustee, and name that person in the will.  Set up a trust fund.  Make sure all your beneficiary accounts are set up for your children in the name of the trust.  You can be as specific as you wish as to how the funds in the trust are paid out.  For example, tuition for schools and university can be paid directly from the trust, so it doesn't flow through the ex.

[mamachelle]

Yes, you need a trust. The same lawyer that handled my custody issues also did my and H's will and trust. He is well versed in Divorce and custody with mentally ill parents so I would see if your Divorce lawyer (if he or she was good) perhaps could also handle this.

It is fairly straightforward but definitely you will need a lawyer to handle and some trustees you trust. 

[ForeverDad]

Some companies won't let you list a minor as a beneficiary.  I don't have enough money to justify a trust now, but I'll have a "trust" through my will once I'm gone.  The lawyer who writes or updates your will can tell you how to do this properly and which common mistakes to avoid.  The text I put on my beneficiary paperwork is something like this:

"In trust for {child/children} pursuant to will dated ... .  "

Assigning an inheritance or insurance proceeds directly to the children would likely leave those funds in the direct control of the other parent.  That's a recipe for disaster for people in our situations.

[livednlearned]

It's a good question.

I have a life insurance policy that I took out, thinking the worst, not knowing what N/BPDxh would do. But I haven't made a will yet because I think it costs roughly $2000 to create a revocable (or irrevocable? I can never remember which one) trust so that things don't have to go through probate.

Don't have the $2K right now.

But when I do, I was planning on seeing an attorney and asking for language that explicitly stated that no money would go to N/BPDxh. Is that weird to put in a will?

[Rose1]

My lawyer suggested stating that my exh was adequately provided for in a property settlement. But I understand a divorce cancels out a will anyway. This is Australian law so no idea how it applies but it seems sensible.

[GustheDog]

I was planning on seeing an attorney and asking for language that explicitly stated that no money would go to N/BPDxh. Is that weird to put in a will?

Not weird at all, but depends if it's applicable or not.  If you create a will that handles the disposition of some, but not all, of your property, then the residue of your estate (that which has not been disposed of via the will) will pass by your jurisdiction's (I'm assuming U.S.?) intestacy laws.  Those laws determine what happens to property when a person dies without a will (i.e., intestate), and they will kick in to cover any residual estate not provided for under the terms of the will.

However, most states' intestacy rules hold that divorce will sever a surviving former spouse's right to take any share of the deceased's estate.

So most likely it would be redundant, but check with an estates attorney where you live.

[livednlearned]

I was planning on seeing an attorney and asking for language that explicitly stated that no money would go to N/BPDxh. Is that weird to put in a will?

Not weird at all, but depends if it's applicable or not.  If you create a will that handles the disposition of some, but not all, of your property, then the residue of your estate (that which has not been disposed of via the will) will pass by your jurisdiction's (I'm assuming U.S.?) intestacy laws.  Those laws determine what happens to property when a person dies without a will (i.e., intestate), and they will kick in to cover any residual estate not provided for under the terms of the will.

However, most states' intestacy rules hold that divorce will sever a surviving former spouse's right to take any share of the deceased's estate.

So most likely it would be redundant, but check with an estates attorney where you live.

I'm guessing, tho, that if the money went to a minor child, the other parent could somehow be involved in managing it if we don't create a trust that clearly outlines who can access that money and for what purposes?

[GustheDog]

I was planning on seeing an attorney and asking for language that explicitly stated that no money would go to N/BPDxh. Is that weird to put in a will?

Not weird at all, but depends if it's applicable or not.  If you create a will that handles the disposition of some, but not all, of your property, then the residue of your estate (that which has not been disposed of via the will) will pass by your jurisdiction's (I'm assuming U.S.?) intestacy laws.  Those laws determine what happens to property when a person dies without a will (i.e., intestate), and they will kick in to cover any residual estate not provided for under the terms of the will.

However, most states' intestacy rules hold that divorce will sever a surviving former spouse's right to take any share of the deceased's estate.

So most likely it would be redundant, but check with an estates attorney where you live.

I'm guessing, tho, that if the money went to a minor child, the other parent could somehow be involved in managing it if we don't create a trust that clearly outlines who can access that money and for what purposes?

Correct.  You'd be well advised to have an attorney create a well-drafted trust, or include equivalent language in your will.

However, I can't answer your specific question because this may be a point that varies by jurisdiction.  It's not inconceivable that a minor could take a bequest under a will that doesn't explicitly create a trust, although many jurisdictions probably "imply" a trust arrangement from a non-specific gift to a minor.  If the former, then it's the minor's money, not the ex spouse's.  Technically, ex spouse would have no right to it.  If the latter, then even if ex spouse was an implied trustee of sorts, it's still a fiduciary role and he would not be permitted to misappropriate or otherwise breach his fiduciary duties as trustee.

So, while I understand your concern, there are some protections built into the law already.  But you'd nevertheless do best to set up a trust with a lawyer - that way you have final say over everything.

[mamachelle]

It's a good question.

Don't have the $2K right now.

But when I do, I was planning on seeing an attorney and asking for language that explicitly stated that no money would go to N/BPDxh. Is that weird to put in a will?

I think our will and trusts cost about 400 -600 for both my H and I. Can't remember but it was cheaper than 2 k for sure and my attorney is pretty expensive... .  Both of us are nons with kids from previous marriages to BPD spouses. All we have really are life insurance and lots of kids... .  

[slimmiller]

Thank You everyone.

I have my Executors and Trustees already lined up. I am leaning towards a simple Will that will convert everything into a Trust upon my death to be distributed to the kids in full at a certain age (25). Prior to 25 they will only receive money to pay for college and simple day to day living expense. I figure at 25 they will know how crazy and financially irresponsible their mom is and hopefully not allow her to get any of it

I know everything varies by jurisdiction and locality. I have read several books on Wills and trusts and also quite a bit of research. I think with the one being that I had with is like my worst enemy 'financialy', is why I need to protect my kids. Things will and do change drastically as the kids get a little older.

She has very effeciently drained me financially over the years and now I want to protect whats left and what I will be able to make back over the years. Giving her money is like giving a junkie a fix. It enables her adulterous activities. Mind you she has never had a meaningful lasting income of her own.

Did any of you that have done/redone a Will after a split, discusssed it with the other parent of the kids. (If that person has BPD) and if so how did it go?

[GaGrl]

In almost all States, I believe, a. Divorce renders wills null. Following the final judgement, both parties should quickly re-do wills, powers of attorney, living wills... .  the whole package.

Also keep in mind that life insurance proceeds go directly to the beneficiary.Unless you make the beneficiary the "Estate of X" or to an established trust, proceeds won't be handled under terms of the will. If proceeds go to minors... , a parent could easily take the check and set up custodial accounts and have full control of those funds until the minors turn 18.

[ForeverDad]

I have my Executors and Trustees already lined up. I am leaning towards a simple Will that will convert everything into a Trust upon my death to be distributed to the kids in full at a certain age... .  

I know everything varies by jurisdiction and locality. I have read several books on Wills and trusts and also quite a bit of research.

That's what my lawyer did.  I will have substantial money only if I die (work & personal insurance policies) so there is nothing to put into a trust now.  I'm not sure of the factors GaGrl mentioned except that I did make sure to rewrite my will once the divorce was final.  The old one had everything going to ex.  I agree that anything going to a minor directly could very probably be handed over to the other parent to administer.

Did any of you that have done/redone a Will after a split, discusssed it with the other parent of the kids. (If that person has BPD) and if so how did it go?

I didn't know if I should rewrite my will during the divorce and since I didn't have a huge amount of marital assets I waited until the divorce was final.  However, I did change my life insurance, health savings and retirement account beneficiaries promptly.

No, I did not tell my ex.  We're divorced, it was not an amicable divorce, it's none of her business.

[slimmiller]

Exactly same here, foreverdad. Over the course of our 13 year relationship, the only thing really left is the life insurance policies and 401k and a little equity in the house. But upon my death it will be much more.

One thing brought up is the fact that the proceeds from a life insurance if going to the minors automatically goes to the other person that has custody. I made sure to change to beneficiaries immediately so the proceeds from the life insurance and 401k goes directly to the kids. I now realize that does not at all protect the assets from her. As a matter of fact, I am basically handing them to her. Thanks for pointing the out   That is exactly why I am asking the questions that I am

I kind of figure the same thing about telling her. Its none of her business unless im gone then if its spelled out and I have good Trustees, she then can do all the btchen and fighting she wants. Whats she gonna do, rage at me when I m in my grave