There
may come a time when a parent is unable, due to physical or mental incapacity,
to take care of her minor children. If a parent dies, the minor children will
need a guardian. In these circumstances, those caring for the children, as well
as the courts will need direction. By writing and executing a Will, which
includes instructions on guardianship one may select someone, either
individually or jointly, with the legal authority to act for minor children and
assume control over the assets of the children. Estate planning, which includes
the execution of a Will, is just as important for moms with minor children as
they are for senior citizens.
Where
there’s No Will …
If you do not write a Will, the State has already written one for you. Your
assets go to whoever a state law says receives the assets, or to the government
itself! A Will should be a statement to the things you truly care about:
your children, your parents, your friends, your Church and charities. You
can consider remembering your church or school.
As average Americans, we work 80,000 hours in a lifetime, or 45 to 55
years. In spite of all our resources and the assets we earn during our
lifetime, the vast majority of Americans do not take the time to create the
legal instructions to guide the court or a guardian upon their death. National
statistics indicate that more than 50% of Americans die without leaving a will.
In the absence of a will or other legal arrangement to distribute property at
death, the State must step in to administer the estate and decide who gets
custody of your children and handles your money. This process is called the law
of intestacy. The result can be lengthy delays in the distribution of your
estate, court battles between relatives and your children being raised by
someone you do not favor. Without a Will, your family will have to pay
substantial costs for accountants, attorneys, bonding companies and probate
fees.
If
You Have No Will:
If
you leave no Will or your Will is declared invalid because it was improperly
prepared or is not admissible to probate:
1.
People you dislike or people who dislike and ignore you may get some of your
assets.
2.
State law determines who gets assets, not you
3.
Additional expenses will be incurred and extra work will be required to qualify
an administrator-Surety Bond, additional costs and legal fees
4.
You Lose the opportunity to try to reduce Estate Tax, State inheritance taxes
and Federal estate taxes
5.
A Judge determines who gets custody of children. A greedy brother or crazy
mother in law could ask the court for custody.
6.
It probably will cause fights and lawsuits within your family
7.
The procedure to distribute assets becomes more complicated
8.
The father of your children may try to control the assets of your children and
not properly spend the money
In planning, make sure your assets go to your loved ones or favorite charity,
not an ex. Therefore, you may wish to do the following:
1)
Have an Elder Law attorney prepare a Will to distribute your assets to the
people you care about the most. If you already have a Will, prepare a new Will
and have the old Will revoked. (Your estate planning attorney will explain this
to you.)
2)
Prepare a Power of Attorney to select someone to handle your finances if you
become disabled. Have your old power of attorney revoked.
3)
Select the correct beneficiary on assets you may own, such as stocks, bank
accounts, IRA, and other financial assets.
4)
Change your beneficiary under your own life insurance, whether whole life
insurance or term insurance.
5)
Contact your employers human resources and change the beneficiary on life
insurance, pension, stock options or other employee benefits. Note that if you
are not yet divorced, your spouse may have to sign a written waiver permitting
you to change beneficiaries.
6)
If you are not divorced or separated from the father, keep your personal papers
at a location where an ex-spouse or the childs parent cant destroy them.
7)
If you have minor children, nominate someone under a Will to serve as guardian
to the children. Although the surviving parent obviously has first right of
custody of children, they may not even want custody.
8)
Make sure the trustee for any funds designated for your children is the right
trustee.
9)
Have your attorney prepare a prenuptial agreement, if you decide to get
married, so your children can inherit your assets. ) If you get married, have a
formal prenuptial agreement prepared by an attorney so your children, not new
spouse, receives your assets if you pass away.
10)
In New Jersey, if you are still married and living with a spouse, under certain
instances the surviving spouse has a right to elect against the will. The
disinherited spouse may like to elect against the Will and try to obtain
one third of the estate. Your attorney can explain how you can protect
yourself and your children.
ESTATE
PLANNING TO PROTECT YOUR CHILDREN
Guardians
Most individuals appoint the parent to act as Guardian of the person and
property of their minor children. It is suggested that your Will include
a clause which provides that in the event the father predeceases you, or is
unsuitable or ceases to act as Guardian of the person and property of your minor
children, you appoint a trusted family member or close friend to act as
successor Guardian of the person and property of your minor children.
Trustee
Select a
trusted person, a close relative or friends, who will invest and hold your
childrens money. In your Will you can instruct the Trustee to apply amounts of
income and principal as they, in their sole discretion, deem proper for the
health, maintenance, education, welfare, or support of your children or other
minors. Direct that the trustee shall accumulate any income not needed for the
above purposes, paying and transferring the portion held in trust to the
beneficiary upon his or her attaining the age of majority or whichever age you
select.
Children
born after you sign the Will
Many
people direct that the provisions of their Will also applies to afterborn
children. Accordingly, if you have any additional children subsequent to the
execution of this Will, then wherever you have designated only your named
children, you intend that all of your children shall share equally in the
relevant provisions of your Will.
In addition to having a formal Last Will and Testament individuals
are encouraged to have a Power of Attorney and also Living Will. Moreover, we
also recommend they plan ahead and write messages to their family and
anticipated executor detailing their specific desires regarding funeral and
burial. Written instructions to your family and executor containing information
and guidance will minimize uncertainty, confusion, and possible oversights
following your death.
Conclusion
While the preceding article contains possible items to be discussed with your
family, attorney and executor, the article is by no means
exhaustive. A number of these items may not be applicable in your
situation, and probably there are many others that are applicable. The
essential element is to spend some time now considering what you should tell
those most closely associated with you to facilitate their handling of your
affairs upon your death.
About the Author:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 19
miles north of Princeton. He often lectures for the American Bar
Association and New Jersey State Bar Association on personal injury, criminal /
municipal court law and practices to improve service to clients. He has
published 125 articles in national and New Jersey publications on legal topics.
He has served as a Special Acting Prosecutor in seven different cities and
towns in New Jersey. He has spoken on Wills and Elder law on numerous occasions
to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South
Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors.
In his private practice, he has devoted a substantial portion of his
professional time to the preparation and trial of litigated matters. He
has appeared in Courts throughout New Jersey several times each week on many
personal injury matters, Municipal Court trials, arbitration hearings and
contested hearings.
He is also a popular speaker for the American Bar Associations General Practice
Section and Law Practice Management Section.
Since
1985, his primary concentration has been on litigation matters. Mr.
Vercammen gained other legal experiences as the Confidential Law Clerk to the
Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA
District Attorney Office handling Probable Cause Hearings, Middlesex County
Probation Dept as a Probation Officer, and an Executive Assistant to Scranton
District Magistrate, Thomas Hart, in Scranton, PA.
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