Great Reasons to Update your Will Once in a While

The years really fly by. I can’t tell you how many times some one has come in to meet with me who signed a Will 25 years before and never updated it. When major changes occur in your life, it’s important to see your lawyer for a “check up” to make sure that your old Plan is still a good Plan for you. Here are samples of situations I have encountered, which required an updated Last Will and Testament and updated beneficiary designations on assets such as life insurance or tax-deferred accounts:

  1. Grandchild has severe disabilities, will be unable to support himself, and depends on programs that require Medicaid eligibility. An outright inheritance could be disastrous.
  2. Child has acquired substantial debt or is in the midst of a divorce.
  3. Beneficiary turns out to be a major spendthrift  and should have somebody controlling and managing his inheritance.
  4. You no longer have a relationship with the people you listed as your Executors.
  5. Your designated Executor or Trustee has passed away.
  6. You want to guarantee that certain charitable bequests will be made.
  7. You want to leave money to your grandchildren as “something special,” even though the rest of your estate will go to your children (their parents).
  8. You have a Will from the 1990’s that left the “credit shelter amount” locked up in a trust for your surviving spouse to minimize estate tax in the estate of the 2nd spouse to die, yet now, there is no NJ estate tax and no federal estate tax for almost everyone
  9. You left a beneficiary’s share in a Trust under your Will, but now she is older and fully capable of managing her own assets.
  10. Your spouse is going into a nursing home and you want to limit the amount s/he inherits if you pass away first.
  11. You got married, gave birth or adopted a child, or you want to leave some assets to your step-children.

Whatever has changed, family estate planning should be an ongoing process throughout your life, starting at age 18 and moving on from there.

Call us to set up a plan that works for you …… 732-382-6070

 

Adopting a child? Don’t forget to update your Will and estate plan!

The adoption of a child is an event filled with expectation, planning, longing, and finally, the excitement of completing the court proceeding that legalizes the adoption. So many things start to happen that it’s easy to lose sight of the need to protect the child in case of a tragedy. The way to do that is by preparing a Last Will and Testament that includes provisions for a Guardian as well as provisions to protect the assets for the child’s benefit up to a certain age determined by the parent. Beneficiary designations of tax-deferred assets, retirement plans, annuities and life insurance should be coordinated with the estate plan. Whether the assets are large or small, the process is called “estate planning.” As I like to say, careful planning can prevent a crisis, and failure to plan can create mountains of legal work.

If a minor is orphaned, an adult will have to be appointed as their legal guardian until age 18. The parent can include a provision in the Will that specifies a string of successor guardians. See NJSA 3B:12-13 -18. If the child is adopted by a married couple, the surviving parent is the natural guardian. But if there is no surviving parent (see NJSA 3B:12-21), there will be a void and there may be a battle among the grandparents or a battle among friends or remote kin. Even after the Court has appointed the testamentary guardian, the court has the ongoing authority to look into the best interests of the minor if something goes awry and a person brings the matter before the court.

The parent also needs to consider who will manage the child’s funds if the parents have died. Unless a trust is written into the estate plan, the property of the minor in excess of $5,000 in any given year will have to be deposited into the County Surrogate’s account. The minor’s guardian will obtain the funds by completing request forms at the Surrogate’s office, and when the minor reaches 18, s/he can waltz in there and receive the entire amount. As you can imagine, this may not be a good idea, depending on the circumstances, and particularly if there are substantial sums there. The intestacy law (for estates where there was no Will) does not automatically create a trust for the minor just because it seems like the smarter thing to do. The guardian has to bring an action for a protective arrangement (see NJSA 3B:12-1) and to create a trust for the minor (see NJSA 3B:12-54) to preserve the funds for the child’s future, past age 18.

By writing a trust into the Will, the parent can select the trustees — who may be different than the people they select as the guardians — and can decide the ages at which their child will receive funds from the Trust. They can designate the Trust to receive life insurance, annuity payments and the funds from an IRA or 401K. And of course, if the child has special needs and will require SSI or Medicaid or DDD over time, the parent would want to build that into the estate plan as well.

I have had several occasions over the years to represent clients who needed to become guardian of a minor because the parent(s) died with no estate plan. Eventually the problems were solved, but a tremendous amount of legal work was required, and acrimony among family members was the inevitable result of the parents’ failure to plan.

Call us for legal strategies and representation concerning guardianship, trusts and estates … 732-382-6070