When an individual is filing for divorce, it is not uncommon that he or she will try to make changes to a will as quickly as possible in order to prevent his or her ex from getting anything during the divorce. It is true that you will be able to make a will at any time. You will also be able to make a new trust. However, you will not be able to fund the trust. If the trust is not funded, there will be a probate. However, your ex will still not receive your assets. During a divorce, there is a restraining order against transferring funds into the trust fund. It is not possible to engage in a non-probate transfer or to modify a non-probate transfer. There are also several other things that occur during a divorce:
Your Spouse May Not Receive Anything Anyway
Fortunately, depending on what state you reside in, you may not have to worry about leaving anything behind to your ex-spouse. In many states, any gifts left to a spouse in a will are automatically revoked. The only exception is if the will expresses that certain assets will be left to a partner regardless of whether a divorce has occurred. If for whatever reason, you included this in your will, it is recommended that you have your will changed.
Who Gets The Gift?
When a gift is revoked, and an alternative individual is named in the will, the gift is passed to him or her. If there is a residuary beneficiary, that individual will inherit the gift. Otherwise, the gift is passed in the same way that any gift would be passed if there was not a will. Following the norms of state law, the will would typically be passed to closest living relatives. If there is a gift to a relative of a spouse, it is possible, depending on the state you live in, that this gift may also be revoked. Things can become complicated if you pass away before the divorce is finalized, with the gift likely going to your spouse. However, if you are permanently separated, the gift is likely to not go to your ex.
If you are concerned about whether your spouse will receive your assets after you die, it is recommended that you contact a probate attorney to receive assistance with this task. A probate attorney will provide you with the best steps you can follow that will allow you to avoid giving your assets to your ex.
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