WHETHER YOUR CHILDREN are teenagers or adults, they likely loom large in your mind when you consider your estate planning. Below is a wide-ranging Q&A to help you become more informed about will drafting for parents with children.
Q. Do I have to leave anything in my Will to my children?
A. No. Children have no right to elect against your Will, if you decide not to leave anything to them. Only a surviving spouse can elect against a decedent’s Will and obtain his or her statutory elective share of their decedent spouse’s estate (which is generally 1/3 of the decedent spouse’s estate or $50,000, whichever is larger).
Q. What if I die with children but I don’t have a Will?
A. In that case, you die “intestate,” which means you die without a Will. If you die intestate, the laws of intestacy of the state of New York apply. If you die intestate and leave a spouse and children, the spouse receives the first $50,000 of your estate and the balance is split 50 percent to your surviving spouse and 50 percent equally to your children. If you die intestate with children, but no surviving spouse, your estate is shared equally by your surviving children.
Q. Can I treat my children differently in my Will?
A. Yes. There is no legal obligation for you to leave your estate equally to your children. If you leave one or more children out of your Will, it is advisable to state in your Will that you have intentionally done so. For example, you can state: “I intentionally leave no gift, bequest, or devise to my son John.”
Q. Will my children get notice of the content of my Will when I die?
A. Yes – because your children are your “intestate distributees” – meaning they would inherit from you if you had no Will, they are given notice of the probate of your Will. Probate simply means your Will is submitted to the local County Surrogates Court by the named executor and the court is asked to appoint the executor and give effect to the terms of the Will.
Q. Can any of my children challenge my Will?
A. Yes – however, they need to have a good reason that they can prove in order to be successful. For example, they need to prove that you were not mentally competent to execute the Will being admitted to probate or that you were subject to the undue influence of another person when you signed the Will. Such challenges are generally very difficult to mount successfully.
Q. Can I make one of my children the executor of my estate?
A. Yes. People often choose one or two of their children to serve as executor(s) of their estate.
Q. Can one of my children who was not chosen as executor challenge the child I chose?
A. Yes – but they have to have a convincing reason. An example of such a reason would be that the child you chose is not good at handling money and that the assets of the estate would be in jeopardy in their hands. Such challenges are difficult to prove and courts generally honor the decedent’s choice of executor.
Q. If one or more of my children are minors, can I control how they receive assets from my estate?
A. Yes. If you’re leaving assets to a minor, you generally leave them in trust to be controlled by a trustee until the child is older and more mature. The trust can be structured however you like, but it generally allows the trustee to make distributions for the child’s benefit in their early years and then pay out the balance at a later age, i.e. 30 years old.
Q. If I leave assets in trust for my child, can they be kept in trust for their whole lifetime?
A. Yes. In some cases, it is appropriate to do so. For example, if the child has a persistent drug abuse problem, there may not be an age at which it is safe to distribute all the funds from the trust to them. As a result, they can be kept in trust until the child passes away, and then they can be left to someone else.
Q. If I have a disabled child, do I need to make special provisions for them?
A. Yes. It is wise to do so because disabled children often are eligible for means tested governmental benefits like Medicaid or SSI. If they receive a large bequest from your estate outright, they may lose those benefits and have to spend down your gift before being eligible for the benefits again. To avoid this, the gift you leave them in your Will can be placed in a special trust known as a Supplemental Needs Trust (SNT) that will protect those assets from affecting their governmental benefits. After your disabled child dies, the remaining assets in the SNT can be left to someone else.
Q. Can I direct in my Will who I want to take care of my minor children if I’m no longer living?
A. Yes. If you and the other parent of your child pass away, you can name your choice for a guardian of your child. The named guardian will have to seek appointment from the court as guardian, but the court will likely give strong weight to your preference.
Estate planning for parents with children can be challenging. It is advisable to meet with an experienced estate attorney to discuss what planning options are best for your family.
Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs. Over his 21 years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at 518-584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it., and
www.oalaw.com.
