Getting a will written is not something anyone wants to do, but it’s a necessary document to have, especially when you’re a parent.
Christine M. Sellitti, attorney and a founding member of Elias Sellitti LLC, a boutique law firm with its main office in Basking Ridge, says we’re all going to need a will someday. She’s seen firsthand what not having one can do to families and the fights and uncertainties it can cause just aren’t worth it. “My sincere advice is to think of estate planning and will preparation as a gift you’re doing for your loved ones,” she says. “We plan for everything in life, education, weddings, retirement, and this is the one thing that we know we’ll need so I urge everyone to consider making a will.”
APPOINTING A GUARDIAN
If you’re a parent of a young child, appointing a guardian to care for your minor child or children is a top priority and a pressing reason to get a will written ASAP.
“A guardian is the person who will act in a parental role to your children,” says Sellitti. “If you don’t designate a guardian in your will, someone will have to make an application to the court to obtain guardianship or custody of the minor child or children, which is much more cumbersome and costly.” Additionally, if you don’t designate a guardian to care for your minor children in the event of your death, you run the risk of family or friends fighting in court over who will take care of the children, or possibly worse, nobody stepping up to the plate to take custody and care of your children.
If you have a child or relative with special needs, Sellitti says you should consider a “special needs trust” which could allow the beneficiary to continue to receive government assistance while using trust assets as needed for any expenses that government assistance would not pay for.
INCLUDING ADULT CHILDREN IN YOUR WILL
Even if your children are grown, you still need a will. “You would not need to designate a guardian in your will to care for an adult child, but you may nevertheless wish to set up trusts for your adult children for asset and/or tax protection purposes,” says Sellitti. “Talking to an estate planning attorney will help you determine your issues and make recommendations for your situation.” For example, you may have a family business that you want to pass on to the next generation, but only some of your children are involved in the business. You may want to treat all of your children equally in financial terms, but only want the business to pass to the children who are directly involved. An estate planning attorney can help you navigate those issues and make the best plan that suits your family.”
Another important point that is often overlooked is the need to include your own aging parents in your estate plan, especially if you’re providing them direct support in the form of money, care or housing. A good estate attorney will know how to ensure continued care of the parent if you’re no longer around to do so.
PASSING ON ASSETS
Another important reason to get a will is so you can define in what manner your assets will pass. “For example, if you die without a will and all of your assets pass to your minor children as your next of kin and heirs at law, those assets will be held by the surrogate’s court for the child in a non-interest or low-interest bearing account,” explains Sellitti. If this happens, the child or their court-appointed guardian will generally have little or no access to those funds until the child turns 18. At that point, the child will have to make an application to the court for access to any funds. At age 18, all assets will be paid out to the child no matter how much or how little is in the account and regardless of any surrounding issues such as the child’s ability to manage funds.
By designating when and how your assets should be distributed, you can protect your child from coming into a sum of money they are not experienced enough to manage. You’ll also be protecting them from untrustworthy friends or spouses without the best intentions.
WORKING WITH AN ATTORNEY
While there are plenty of websites out there that claim to write you a quick will at a low cost, Sellitti says that just as you wouldn’t rely on WebMD to diagnose an ailment, the same goes for estate planning.
“Find an attorney who focuses their practice on estate planning,” she says. “Many people think of estate planning as something for the ultra-wealthy, but that is not necessarily the case.” An estate planning attorney will assist you in a holistic manner. Someone who will draft a “quick will” for you generally will not look at the whole picture and ultimately many issues are left unattended to and can result in your assets passing in a way you did not intend. You could also end up costing your loved ones money either in taxes or legal expenses or both. All of this can be avoided by retaining an estate planning attorney.
And while you might be tempted to scribble a will on a piece of paper, Sellitti says this isn’t ideal since New Jersey laws are very specific, which could deem the will invalid.
Instead, Sellitti suggests looking for an attorney who will consider your entire personal and financial situation and one who will listen to your concerns.
“Jot down some quick ideas of what you would want your world to look like if suddenly you were no longer in it,” she says. “For example, who would you want to take care of your children, and who would you want to manage your affairs? Then call an estate planning attorney and start the process. You will be happy you did it and you will feel secure in your plan.”
*The information in this story is not intended as specific legal advice, but rather as a starting point to think about this important topic.