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Home » Estate Plan Updates for a Surviving Spouse

Estate Plan Updates for a Surviving Spouse

July 21, 2022Estate Planning

Indianapolis estate planning lawyers

The loss of a spouse is generally followed by a period of grief during which it can be difficult to focus on practical and legal tasks. If you find yourself dealing with the loss of a spouse, however, there are some important estate plan changes that you probably need to make as soon as possible. To help you get started, the Indianapolis estate planning lawyers at Frank & Kraft discuss estate plan updates for a surviving spouse.

Your Last Will and Testament

Along with removing your spouse as a beneficiary under the provisions of your Will, you may also need to remove him/her as the Executor of your estate and appoint someone new to the position. Your current Will should include language that accounts for the possibility of a beneficiary predeceasing you; however, knowing that you will be the last spouse to die may change how you want your estate distributed. Your spouse probably left you significant assets which changes the make-up of your estate assets. Your Will may also already have language appointing someone else as your Executor if your spouse cannot serve; however, you now need to decide if that successor remains your first choice and, if so, who should be your replacement successor.

Trust Agreement

Trusts are a very popular addition to the average estate plan. If your plan includes a trust, and you appointed your spouse to be the Trustee of the trust, you may need to amend the trust agreement to appoint a new Trustee. Again, your trust agreement should anticipate the possibility of the need for a successor Trustee; however, it still warrants a review. More importantly, the purpose for the trust should be reviewed considering your spouse’s death. Assets may need to be added to the trust. Terms may need to be updated. You may even find that the need for the trust no longer exists.

Incapacity Planning Component

If you do not already have a comprehensive incapacity plan in place, it is crucial that you create one following the loss of your spouse. While your spouse was alive, the law would generally have deferred to him/her to make decisions and/or exert control over your assets if you could not because of your incapacity. Now, however, it is considerably less certain who would have the legal right to step in and make decisions and/or control your assets. That, in turn, increases the likelihood of a contentious court battle between adult children or other family members if you ever do become incapacitated. The best way to prevent this from happening while simultaneously ensuring that your wishes will be honored is to incorporate a comprehensive incapacity plan into your overall estate plan.

Advanced Directives

If you have advances directive in place you probably named your spouse as your Agent, giving him/her the legal authority to make health care decisions for you if you are unable to make them at some point. This is not a document that you want to terminate; however, you will need to spend some time deciding who you wish to appoint as your Agent now that your spouse is gone. Then you need to make that change as soon as possible so you can be assured that the person you want to make decisions for you will make them if necessary.

Life Insurance

Your spouse is also likely listed as the primary beneficiary of your life insurance policies. Start by reviewing the continuing need for the insurance given the recent passing of your spouse. You may decide that you do not need as much insurance as you currently have. If so, make that change. If you decide to retain the current insurance policy, you will need to update your beneficiaries.

Contact Indianapolis Estate Planning Lawyers

For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about updating your estate plan following the death of a spouse, contact the experienced Indianapolis estate planning lawyers at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.

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Paul A. Kraft, Estate Planning Attorney
Paul A. Kraft, Estate Planning Attorney
Paul Kraft is Co-Founder and the senior Principal of Frank & Kraft, one of the leading law firms in Indiana in the area of estate planning as well as business and tax planning.

Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
Paul A. Kraft, Estate Planning Attorney
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For many people, the primary motivation for creating an estate plan is the desire to provide for loved ones in the event of death. Along with ensuring that your estate assets are passed down to your designated beneficiaries, a well thought out estate plan can also help make sure your beneficiaries receive those assets as soon after your death as possible. As the Indianapolis estate planning attorneys at Frank & Kraft explain, making use of the Indiana Transfer on Death Property Act is one way to transfer assets quickly after your death. The Problem with Probate If you have a spouse, children, parents, or other loved ones who financially depend on you, an important estate planning goal is to ensure that your loved ones have access to much-needed assets as soon as possible after you are gone. Unfortunately, probate can drag out the time it takes for beneficiaries to receive assets. Probate is the legal process that is often required following a death. While the ultimate goal of probate is to transfer assets to beneficiaries and/or heirs of the estate, several steps must be completed first. For example, creditors of the estate must be notified and provided with the opportunity to file claims against the estate. Any challenges to the validity of the Will must also be litigated before assets can be released. It can take months, even years, for assets to finally be released to the new owners if those assets have to go through probate. One of the many estate planning strategies available to help your estate avoid probate in the State of Indiana is the use of Transfer on Death Property Act. What Is the Indiana Transfer on Death Property Act? The Transfer on Death Property Act (TDPA) can be found at Indiana Code 32-17-14 et. seq. The overall purpose of the TDPA is to allow the owner of real property to transfer his/her legal interest in that property to a designated beneficiary or beneficiaries at the time of death. When interest in property is transferred using the TDPA the property does not have to go through probate, meaning the beneficiary takes ownership of the property immediately following the death of the previous owner. Because people are often familiar with the “Payable on Death (POD)” option offered on financial accounts, it may be beneficial to think of a transfer on death property deed as similar to a POD designation on a bank account. When you designate a bank account, for example as a POD account you name a beneficiary. Immediately after your death, ownership of the bank accounts legally transfers to the beneficiary without the need for legal action. It is important to note that with a TOD deed or a POD account, the designated beneficiary has no legal ownership interest in the asset prior to the death of the owner. This is the primary difference between owning assets jointly and a TOD/POD designation. When you jointly own property or other assets, the co-owner has a present legal ownership interest in the asset. For example, if you and your spouse own real property jointly with rights of survivorship, your ownership interest in the property will automatically transfer to your spouse upon your death, just as with a TOD deed; however, your spouse also has an equal ownership interest in the property while you are alive. If you used a Transfer on Death deed instead of joint ownership, your ownership interest in the property would pass to your spouse upon your death; however, he/she would have no legal ownership interest in the property while you are alive. For a Transfer on Death deed to be valid, it must be executed by the owner of the real property, or their legal representative, and be recorded in the county where the real property is located. Upon the death of the property owner, the designated beneficiary takes legal ownership of the property without the need for the property to pass through probate. Contact Indianapolis Estate Planning Attorneys For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to incorporate the Indiana Transfer on Death Property Act into your estate plan, contact the experienced Indianapolis estate planning attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
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