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.
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.
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.
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.
Kenneth Vercammen Law Office, 2053 Woodbridge Ave.
Edison, NJ 08817