BoomerGirl.com

Q: My husband left me and our two children, citing "sorting things out" as the reason. Well, he has been "sorting things out" for the past two months, has missed three marriage counseling sessions, and has not seen or called our children in the last month. I have passed the anger stage, and believe that I need to get my ducks in a row. Aside from getting a good divorce lawyer, do I need anything else?

A: There are three documents that every person who separates or divorces needs: a will; a durable power of attorney for financial purposes; and a health care power of attorney. In your situation, if you don't have proper documents in place and die or become incapacitated, your spouse may well be in charge of sorting out your assets, a quite unintended result.

Your will directs to whom and how your probate estate is distributed at your death. Without a will, your assets will be distributed according to the law of your state. If you die leaving minor children, the courts will appoint a conservator or other fiduciary to handle their money. And without a will, Mr. Sorting It Out will probably come in for a share even though you were separated.

If you have a will, you can choose an Executor or Personal Representative — not your spouse — to handle your affairs; if you don't have a will, the probate or surrogate court will choose this person for your estate — and it may not be the person whom you may have wanted.

If you have minor children or children with special needs, or if you want to avoid possible litigation among family members, you need a will.

Your "probate estate" is all property you own along with interests in property that don't pass to others by what is known as "operation of law." Examples of property that won't be included in your probate estate are 1) a bank account you may own with a relative that is jointly held with a right of survivorship; 2) a house you may own with another person that is titled jointly with right of survivorship — meaning that if you die, your spouse will receive the total ownership at the instant of your death — and vice versa. In this event, the house would not be part of your probate estate. However, if you are divorced, this contingency is unlikely. If you don't have a will, then your assets will be distributed according to state law.

Remember: (1) Your will cannot be used to choose the beneficiaries of life insurance, IRA's, 401k's or pensions. This means that you must follow the rules of the insurance company/IRA/pension in choosing beneficiaries. (2) If you live in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin — or have lived in any of these states in the past and own property there — property ownership known as "community property" may come into play. In community property states, each spouse owns an undivided one-half interest in property acquired during the marriage — which must be considered. The other states, called "common law" jurisdictions, base their property ownership system on that of England.

And remember: If you are separated, but not divorced, you cannot cut your spouse out of your will — unless there is a written waiver or release in your separation agreement or prenuptial agreement.