Everyone should have a Will, but it is equally important to adjust your Will to keep up with significant life changes, especially after a marriage or a divorce. When these changes take place and are recognized by Virginia, there can be certain presumptions acted upon if the change in circumstances is not specifically addressed in one’s Will. This can cause a lot of stress for family members. Below, we discuss two situations that exemplify what can happen if your will is not up to date.
If a marriage ends and the Will is not adjusted to reflect this change, and the testator (the person who wrote the Will) dies, Virginia will presume that the ex-spouse died before the testator. This means that the assets then go to other individuals named in the Will. If the only person named in the Will is the testator’s divorced spouse, then the assets will go according to the descent and distribution statutes of Virginia: (1) First, to children and other descendants, if there are any; (2) If none, then to parents, if still alive; (3) If parents are not alive, then to siblings and their descendants, and so on.
In the case of a divorce or annulment, a revocable beneficiary designation is treated as though it was revoked. This includes life insurance, annuity, retirement arrangements, compensation agreements, or other contracts designating a beneficiary. If a new primary beneficiary is not identified, the contingent beneficiary will inherit. However, if a contingent beneficiary is not named, the proceeds will likely end up in the person’s Estate. Once in the Estate, assets are subject to probate tax and the public administration process. In addition, tax-deferred retirement assets that go to an Estate are immediately taxed and are not eligible for further income tax deferral that is available to individual beneficiaries.
The writing and maintaining of your Will are both extremely important, but it can also be very complex. We strongly suggest you hire an experienced attorney to help you write your Will and review your beneficiary designations and how that might affect your overall estate plan. This will ensure that all points of interest are accounted for, as well as your wishes regarding your beneficiaries.
Our legal team is committed to making the often-confusing process of estate planning easy to understand for our clients.
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