I often get contacted by young parents who wonder if they need a Will. Some were told to get a Will, perhaps by their financial adviser or by members of their family. For many reasons, everyone does their surviving relatives a favor by leaving behind a Will, and young parents in particular!
Why is that? In their Wills, the parents can say who they would like to name as their children’s Guardians. Those Guardians could sign the children up at school and take them to the doctor. If, on the other hand, the parents both died without Wills, leaving minor children behind, then the parents’ families would have to petition a court to request that someone be appointed Guardian, to have the legal authority to handle education and health matters for the children. In a perfect World, the two families would agree on who the Guardian should be and who the children would live with, but what happens if the two families don’t agree? The legal proceeding for the appointment of the Guardian would become a costly tug of war over the children, who would be left in limbo, and in the end, the court will select the Guardian. It could end up being someone who would not have been the parents’ first choice. Therefore, setting up Wills, in which the parents clearly identify the Guardian they prefer, and maybe even backup Guardians, in case something happens to their first choice, will avoid uncertainty and potential costs.
Aside from naming Guardians, a Will typically identifies the immediate family, it allows instructions for the distribution of the property and includes the names the persons who should be put in charge of that distribution. Those persons will also have to handle any payments for last expenses and taxes. The process of administering the property of someone who died is called probate and is handled through the local Register of Wills office where the Will is filed after death.
Dying without such instructions, without a Will, is called “dying intestate.” When that happens, the State in which the deceased person lived will have laws that determine who will inherit the estate and who will administer it. Clients are often surprised how the State would distribute their property, since it does not correspond to what they thought would happen.
We recommend parents work with an estate planning attorney who can advise them during the planning process. They will discover that they can address how their children’s inheritance can be managed for them while they are young, and at what ages they can learn to manage it themselves. Parents can also protect their children’s inheritance in case of divorces, or from future creditors. As an estate planning attorney, I spend a lot of time in conversations with my clients, using my experience to help them come up with the best solutions, and then we reflect those in their Wills through careful drafting.
