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Deland on Estates and Elder Law

Saturday, November 10, 2007

Who needs an estate plan?

Isn't that a concern of older people, or of the wealthy?  The fact is; everyone should have an estate plan, meaning at least a will, and probably a trust as well.  Whenever anyone passes on, there are decisions that have to be made, and things that have to be given out.  The person who does this is called the "executor" if there is a will.  If there is no will, this person is called the "administrator".  If there are children, someone has to take care of them, and be responsible for the money and things that belong to them.  This person is called the "guardian." 
  It is true; the court will not leave things without owners and children without a guardian.  But do you know who will be most likely appointed administrator and guardian in the absence of any advance planning?  The first person who volunteers.  If more than one person is interested, in being, say, administrator, there will be a lawsuit about it.  Eventually, the case will be resolved, but not without the bad feelings and expense that stem from any adversary proceeding.  Especially if children are involved, think custody battle. 
  Face it; the court is going to be involved. But if your selected executor can present the court with a tightly worded self-proving will that says who you want to do what, the judge has to do a lot less work.  And judges like that.  Although the judge can theoretically appoint someone else, if the will is clear and all interested parties agree, he or she is unlikely to. 
   As a matter of fact, probably no one needs an estate plan as much as a person with young children.  Just because it is so unlikely that such a young person will pass on, such an event is a worse blow to the family than the passing of an older person would be.  It causes worse chaos, financial and emotional. If one spouse is left behind, they must care for the children alone.  What if the surviving spouse re-marries, perhaps to someone who already has children?  What happens to the assets that should have taken care of the children of the first marriage?  What is to keep the life insurance intended for those children from being spent on a new car or expensive vacations? If both spouses are gone, which side of the family gets the children?
  One way to protect children in the event of the early death of a parent is to have money, such as life insurance, paid into a trust for the benefit of the children.  The trust could pay only for specific needs of the children such as braces or private school, or it could provide a stream of income to surviving spouse or guardian to provide for the children's needs.  The trust could be under the control of the spouse if that seems like a good idea, or a third party could control it, perhaps a grandparent.  If the assets are large, you may want to involve a paid third-party like a bank.  If both parents are gone, one relative may be the trustee, while another serves as guardian. 
  You should discuss with your spouse who in your respective families could care for the children if you were both gone.  Whatever plan you choose to have, you should have one, or you may be leaving the judge to make up his or her own mind as to what is best for your loved ones.  The result may not be a bad decision, but it may be different from the one you would have made.

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Jennifer A. Deland, Counselor-at-Law advises clients throughout the Metrowest area, including Holliston, Hopkinton, Milford, Medway, Medfield, Ashland, Framingham, Natick, Sherborn, Dover, Southborough, Sudbury and Westborough.

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