by
Kenneth A. Vercammen, Esq.
There
may come a time when a parent is unable, due to physical or mental incapacity,
to take care of his/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 young families with minor
children as they are for senior citizens.
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.
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 employer's 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 yet divorced, keep your personal
papers at a location where an ex-spouse or the child's parent can't 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.
10) In New Jersey, if you are 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
IF
YOU HAVE NO WILL (LEGALLY REFERRED TO AS INTESTATE SECESSION):
If you leave no
Will or your Will is declared invalid, because it was improperly prepared or is
not admissible to probate:
* State law determines who gets assets, not you
*
Additional expenses will be incurred by your heirs and extra work will be
required by the heirs of their attorney to qualify an administrator
* The Judge
determines who gets custody of your children
* Possible additional State
inheritance taxes and Federal estate taxes
* If you have no spouse or
relatives, the State may take your property
* The procedure to distribute
assets becomes more complicated, and the law makes no exceptions for persons in
unusual need or for your own wishes.
* It may also cause fights and lawsuits
within your family
When
loved ones are grieving and dealing with death, they shouldn't be overwhelmed
with financial concerns. Careful estate planning helps take care of that.
Guardians
Most
individuals appoint their spouse 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 your spouse 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
children's 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 Association's 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.
For
more information, go to http://njwillsprobatelaw.com/estateplanningsingleunmarried.html?id=394&a=
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