A testator, or the person writing a will, should definitely rewrite their will after a divorce. A testator who changed their name after the divorce should use their new name in the new will. A divorced person can change their name by filing a petition in the probate court in the county in which they live. The testator should use their new address in the new will if their legal residence changed.
The testator should name a different party than the person’s former spouse as the executor, the individual in charge of the estate. In Alabama, an executor may also be called the personal representative. By law, the act of an uncontested divorce in Madison County revokes a former spouse serving as the executor of the will. It is helpful that the new will clarify that the testator does not want their former spouse to be the executor.
The new will should name a different executor, as well as the testator’s relationship to that person. If the testator and their former spouse have minor children, meaning children under 18, the new will should name a guardian for the children. The court appoints a guardian for minor children if both parents pass. Typically, if the testator passes and their former spouse survives them, the former spouse takes custody of the children.
The exception is if the former spouse is unfit. Then the court will consider appointing a guardian for the children. It will review the testator’s suggestion as expressed in the new will. If the testator specifically names their former spouse as a person to inherit certain property, such as vehicles, the new will should name different beneficiaries for the property.
How do I change a will?
It is best not to alter the old will. The testator should not change the old will by writing on it after it has been signed. They should not cross out incorrect language such as an old address.
The testator should write a new will. If there are copies of the old will that exist, the new will should identify the old will by the testator’s name at the time of signing and the date that the old will was signed. The new will should then explicitly revoke the old will. It typically takes about an hour to review and sign a will.
An old will can be revoked by burning it, tearing it, canceling it, obliterating it, or destroying it. The testator or a person acting in their presence, by their consent and direction, must intend to revoke the old will.
Property Beyond the Will
A will may not cover all of a person’s property. Property such as insurance policies and bank accounts have designated beneficiaries. A person should update these documents by naming new beneficiaries other than their former spouse.
Relevant documents may include:
- bank accounts, including pay-on-death bank accounts. The person may consider removing a former spouse from a joint bank account. Usually it is a good idea to talk about this with the former spouse in advance. If there is a chance the former spouse might empty the account if they learn of the change, the person making the change should talk to their attorney first.
- retirement accounts, including IRAs and 401(k)s
- health savings accounts
- transfer-on-death brokerage accounts
- college savings accounts for children
- Independently purchased and employer-provided life insurance policies
- pensions
A person has to change these accounts individually. They need to get the paperwork from the appropriate entities: banks, insurance companies, and employers. They should submit the changed paperwork as soon as possible after the divorce.
The divorce can be final and the will can be revised. Yet if the former spouse remains the beneficiary on such documents, they will be the beneficiary on the accounts and policies.
The person getting divorced should also revoke power of attorney for their former spouse. They should give another person power of attorney in new documents. Typically, there are two powers of attorney, one for healthcare and medical decisions, and one for financial matters. If a former spouse has power of attorney, they will retain it unless their former partner revokes it.
2018 ·