Estate Planning

If a person dies without a will, he or she is deemed to be intestate. This means that the person who has died, the decedent, does not determine who inherits his or her assets. Instead, the law will decide who inherits, under the state’s Intestacy Statute.

This does not mean that a person should not have a Will. Without a Will, a person cannot decide who will receive the person’s assets - the state’s Intestacy Statute will make that determination. Furthermore, without a Will, the decedent will not decide who will handle, or administer, the estate. Naming an Executor to administer the estate is important. Moreover, for people with children, without a Will, the decedent will not have a say in who is appointed Guardian of the person’s children. Finally, without a Will, a person cannot set up a Testamentary Trust for the benefit of those children. For these reasons a Will is very important.

Wills are prepared for worst case scenarios. Many of my Will clients are married couples with minor children. The purpose of Wills for this class of person is not usually focused on who will receive the assets in the case of the death of one or both parents - usually the beneficiaries are the surviving spouse, or in the alternative, the children. Rather, the focus is on the naming of Guardians of the minor children, and the establishment of a Trust for the benefit of the children.

The purpose of naming Guardian(s) is obvious - the Guardians are the people who will make decisions regarding raising your children if both parents were to pass away while the children were still minors.

Creating a Testamentary Trust is an additional benefit of making a Will. A Testamentary Trust is a way to ensure, in the event both parents die prematurely, that your children do not squander their inheritance when they are at a young age when they are not prepared to deal with a significant amount of money.

The benefit of a Testamentary Trust can be illustrated as follows. Take a standard situation of a married couple with minor children. In most cases, the persons Will names the surviving spouse as the first, or primary, beneficiary. This means that when one spouse dies, the survivor inherits all of the assets of the first spouse. However, what happens if both parents die?

Usually, the parents’ children are named as beneficiaries. If this is all that is provided, and the children are under the age of eighteen, as soon as the children reach the age of eighteen, they will have full control over their inheritance. In most cases, this is not an ideal situation. The child is eighteen years old, without parental guidance, and in control of a significant amount of money. The child may make bad decisions. He or she may decide to buy an expensive car instead of using the money to pursue a college education. He or she may make some other bad money decisions. By the time the child reaches his or her early twenties, all the money may be spent.

How does a parent prevent such a situation? By establishing a Testamentary Trust in their Will. A Testamentary Trust comes into existence only in a situation where the parent has children under a set age. Instead of gifts outright to the children, the parent names a Trustee who uses the money for the benefit of the children until the children reach a predetermined age. In many cases, the Trustee is empowered to use the trust money for the benefit of the child - to pay for living expenses and education expenses. In many of the Wills I draft, when the child reaches the age of 25, he or she receives a portion of the Trust Fund outright. Then when he or she reaches the age of 30, the rest is distributed. In the meantime, the Trustee is given the discretion to pay for college expenses, or other expenses. The terms of the Trust are in the complete discretion of the parent - including the ages of distributions, and the permissible uses of the trust fund for the children. The Testamentary Trust is a powerful tool to prevent the squandering of money by the parents’ children. It is also an easy thing to create - it does not come into existence unless and until the parent dies and the children are young. No special bank accounts or tax planning is required.

A Will is likewise important for single or divorced parents. Again, as with married parents, a single parent can name Guardian(s) and Trustee(s). A Testamentary Trust can still be set up for the benefit of children.