WILLS, CHILDREN AND GUARDIANS... ESTATE PLANNING TO PROTECT YOUR CHILDREN 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 their minor children. 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. 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 handle their 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 (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 1
* 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 complicatedand 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. 2
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 A. Vercammen is a Middlesex County Elder Law attorney who has published125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings. Our tax counsel is Martin A. Spigner, an attorney whose law practice concentrates in most areas of business law with an emphasis on individual, business and estate tax planning. In addition, other areas include representation before tax authorities, real estate tax appeals, business and personal bankruptcy, elder law, business and personal collections. 3
Clients include individuals, trusts and various types of small businesses in such fields as medicine, dentistry, food, construction and fashion. He earned his B.A. in 1977 from New York University and graduated from Benjamin Cardozo School of Law, Yeshiva University in 1984 with a JD. In 1991 he received his Masters of Law degree in Taxation from Villanova. Martin A. Spigner is a tax and business attorney with special emphasis on Elder Law. He lectures on Estate planning for the New Jersey State Bar Association and has served an Elder Law expert on WCTC radio's "Legal Line"