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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.
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