The Lawyer’s Desk: By John Buckley, Esq.
Young couples in their 20s and 30s frequently question whether they even need a Last Will and Testament. They will pose the question in the following way: We don’t have a lot of money, our biggest asset is our house, and our children will get everything any way… Why do I even need a Will?
The answer is simple and it is true regardless of your age: Having a will gives you certainty, control over who will be caring for your children, and reduces confusion and anxiety among your loved ones.
Consider the following example: A married couple in their late 30s dies in an automobile accident. They have two children, ages 7 and 9, and a house with a $300,000 mortgage. They do not have a will. Because there is no will, there is no executor in place to manage the estate, marshal assets to pay off the mortgage, or sell the house. There is no provision for who will care for the children or how care providers will pay for the children’s living expenses, health care or education.
You are correct to think that the Surrogate’s Court will step in and name an administrator to handle these matters. But who will the administrator be? It could be any one of a number of people who compete for this role. It could be the deceased wife’s crazy sister, or maybe the deceased husband’s brother who has a 20-year track record of alcohol and drug abuse.
Technically, under the law, both of those people are eligible to be the administrator of the estate of their deceased brother or sister. While the Surrogate’s Court strives to nominate the best person for the job, the court’s selection may not be the person you would have chosen for the position.
Just to make matters more complicated, you could have the situation where the court names different administrators for the deceased parties. Imagine the situation where administrator number one wants to rent the house and use the proceeds to provide for the children; while administrator number two want to sell the house, create a trust, and use the trust assets to provide for their children.
The court may have to step in and make a decision.
Similarly, the court may have to select among competing parties vying to be guardian to your children. Is it possible that the court will select the wealthy uncle, who both children despise, rather than their beloved aunt, who is of more modest means and who lives in the same school district as you did?
Yes, it is possible.
The point is that by failing to have a will in place, you relinquish control of your assets, and more importantly, the future of your children to impersonal state laws that may not fulfill your hopes and dreams for your loved ones. It is wise to sit down with your spouse and plan for the future: Name an executor, name a guardian for your minor children, agree on a trustee to handle the finances for the children and even determine at what age the trustee will distribute assets to the children.
You have watched your 9-year-old ride his bike. Do you really want him to use his inheritance at age 18 to buy a Maserati?
This article is written by a member of the Oxman Law Group, PLLC (www.oxmanlaw.com). Any comments or inquiries are welcome and can be directed to Marc Oxman at 914-422-3900 or moxman@oxmanlaw.com
