Attorney & Mediator
Attorney & Mediator

Wills are important for younger people who are parents

Most young people do not think about executing Wills. They usually owe more than they own. This can especially be true for the young married couple.

When they have a child of their own, it is time for some thoughtful consideration of their child’s future. If something happened to them, who would care for their child.

Tom and Nancy were married and had a child, Max. Nancy had been raised in a very strict family. Her parents were affluent. She had a difficult relationship with them – they had not approved of her selection of Tom as a husband, nor of her choice of a profession – social work. Nancy did not look upon her childhood fondly – she felt that it had been too strict, her parents too judgmental and controlling.

Tom’s family was large and easy going. He had a great childhood and a really close relationship with his brothers and sisters and his parents. Although they live in another state, Tom and Nancy see them frequently and check in with them weekly on the telephone. Tom’s choice to be a teacher made his parents proud.

Tom and Nancy did not execute a Will – they had little – a new home with a mortgage, cars with loans, little in the bank. If asked, both Tom and Nancy would have desired that Max live with Tom’s parents or one of his siblings if anything were to happen to them. This was not written down. Tom and Nancy were killed in an automobile accident when Max was only five years old.

Since they lived locally, Tom’s parents immediately took Max into their care. Additionally, they filed Probate proceedings for Tom’s estate and for Guardianship of Max. While Tom’s parents also requested to be considered for Guardianship of Max, they were out of state and had few monetary resources. Issues for the court to consider included whether it would be good for Max to be removed from the school and the community that he lived in to be taken across the country when there were relatives here ready and willing to raise him.

How could this have been avoided?

Tom and Nancy should have executed simple Wills. While a young couple may not have many monetary assets to worry about, their most important “asset” – their son – was at risk. A Will sets forth who a couple wants to be the guardian and the conservator of their children in the event of their death. While most never face this situation – it does happen. It is worth taking the time to make provisions for children in the event of their parents’ death.

How to choose a Personal Representative

When you are establishing a Last Will and Testament – one of the issues that you confront is the selection of a Personal Representative. If you are part of a couple, you will usually select one another. Yet, you really need to select an alternative to serve in the event that the person you have chosen is not able to serve.

While it may seem logical to select a family member to serve in this capacity – his or her expertise will determine how quickly and/or smoothly the process is completed. If the individual selected has limited bookkeeping or money management skills, or is very busy – the process could be slowed down. Additionally, the selection of one family member could place him or her in the middle of a family disagreement.

If the assets of the estate are depleted without leaving sufficient funds to pay the inventory fee or the estate taxes, the Personal Representative could be personally liable.

It should be remembered that this is less of an honor and more of a job than most people anticipate. It is time consuming and it is an enormous responsibility.

The qualities of a good Personal Representative include:

• Trustworthy – this individual will be entrusted with property and cash assets
• Fair – he or she should not show favoritism to one beneficiary over another
• Common sense – this is a must – the individual should show practical common sense for getting the job done
• Strong and/or tough – this individual may be placed in the center of debates and arguments concerning the distribution of your estate and he or she must be able to make the hard decision and stick with it.

You are moving Mom or Dad into your home – can you charge for this?

This is a topic that causes family feuds. Can you charge your parents if they are living in your home? This is like walking across a field that is full of land mines. There are two sides to every coin.

First, why are you moving mom or dad in with you and where are you moving them from? Do all of your siblings know? This is critical. If you are making this decision by yourself, without input from your siblings, you will be criticized.

Are you moving them from assisted living to save money? Is this because they will run out of money or because you are trying to preserve your inheritance? This is an important distinction.

Assuming that you have informed the rest of the family that you are moving mom or dad in with you, what can you charge for?

Can you charge to remodel parts of your home for them? It depends on what you are remodeling. Are you changing a bathroom so that it accommodates a wheelchair? Or are you adding on that extra bedroom and bathroom that you always wanted? Are you putting a ramp on so that there is wheelchair access or are you finally paving the driveway after 10 years? The remodeling has to be for their benefit, not yours.

What about charging for room and board? Isn’t it cheaper for them to live with you at a reduced rate than to pay for assisted living? And, aren’t they eating your food and using your electricity?

There are two sides to this coin. From the perspective of the family member with whom the parent is residing, there is an increase in cost for food and utilities. Additionally, the family member is “on duty” 24/7. They would pay so much more at assisted living and your time is valuable. After all, aren’t these other siblings miles away and not assisting with this what so ever?

From the perspective of the other siblings, it may not make as much sense. They may look at you charging mom or dad room and board and say “who does that?” – “who charges their parent for their food?” They may also see this as your attempt to get a larger piece of the inheritance pie by getting paid up front.

How do you resolve this? Conversation. Talk this over, in advance, with all other family members. Discuss the pros and cons. Get input from everyone and put all the issues on the table. While everyone may not agree in the end, they will not feel they were blind sided and cheated.

Wills do go to Probate Court!

I am often surprised to learn that many people believe the following:

-if you have no estate planning in place, your estate goes to Probate, but

-if you have a Will it does not.

This premise is incorrect !  Wills go to Probate Court!  That is what they were designed to do.

In your Will you specify who gets your personal property, real property and assets after your death.  This is also where you nominate your Personal Representative. It is only after an Application or Petition has been properly filed in the Probate Court that this nominated individual is actually appointed by the Court.  At that point he or she is empowered to act, not before.

If the deceased had a bank account owned by him or her alone at the time of death, the bank will not liquidate the account upon presentation of the Will.  It will require a Letter of Authority from the Probate Court which shows that the individual nominated has actually been appointed by the Court and that he/she has the power to act.

The same is true for the sale of real property.  The nominated Personal Representative does not have the authority to list property for sale, nor to complete the sale and sign a Deed, until he or she has been appointed by the Court and a Letter of Authority has been issued.