Understanding Wills – Part 2

by Sheryll Bonilla, Esq.

In this article, we continue with commonly asked questions about Wills.

What is the purpose of a Will?
A Will does two or three things. First, it tells the Court who you trust to distribute your property to your beneficiaries, pay your bills, and file your last tax returns after you die; that person is called the personal representative (or in other states, the executor).

Second, it tells the Court “who gets what and how much of it.” Third, it tells the Court who you trust to raise your children if you die before they turn 18 years old.

Elective Share – Nine months deadlineCan one spouse eliminate an inheritance from the other spouse? Sometimes this can be unintentional, such as when a person writes a Will and then marries but doesn’t update the Will. Even in this situation, the surviving spouse must act quickly.

The surviving spouse has a deadline of nine months to file with the probate court their claim to take an elective share. The starting point is $50,000 plus 3% per year of marriage, up to 50% of the estate after 15 years of marriage. This elective share can trump a Will or Trust – but only if filed within the first nine months after the date of death of the deceased spouse.

It’s very important that the surviving spouse find out what the Will or Trust says, and if he or she is left out, to file a claim in the Probate Court before that nine-month deadline.

After that deadline has passed, the spouse can only claim a homestead allowance of $15,000, a family allowance of $18,000, and $10,000 of exempt property (household furniture, automobiles, furnishings, appliances, and personal effects).  These allowances are for the support of the family before final distributions are made to others.

“We’re too young to write a Will”
Parents with young children believe they are too young to write a Will because they won’t die for decades. Consider this incident that happened this year.

A high school-aged son was playing a basketball game, and his parents were driving to the school to watch him participate. For whatever reason, they left their younger son, aged 12, at home alone. While driving to the game, a car from the other direction crossed the median and hit the parents’ car head-on, killing both.  That 12-year-old left at home became an orphan.

For parents with young children, a Will is usually written with a provision for guardianship of their children in case both parents die before the child turns 18.  That paragraph in the Will identifies who the parents choose to raise their children in that situation. Those nominees then take that Will to court and ask for an order appointing them as legal guardians of the now-orphaned children. If you have young children, give serious thought to who you trust to raise your children in case you die before they do. You can name your first and second choices, just in case your first choice is not available.

Often if there are older children, parents name the older children to be legal guardians of the younger ones. Sometimes the parents name their siblings or trusted friends.

I have a disabled child
Disabled children usually are recipients of assistance, either from the government or private entities. Often there are eligibility requirements.

For example, if the child has ample assets, the child may be ineligible because society generally wants everyone to pay their own bills. Preferably, parents create a special needs trust while they are alive so that assets go into the special needs trust rather than directly to the disabled child so that those assets are not counted against the child when applying for assistance.  If you created a special needs trust for your child and your child could inherit from grandparents or other relatives, it’s a good idea to inform them of the correct name of the special needs trust. Those family members should have their wills or trusts identify that special needs trust to receive inheritances for that disabled child, instead of it going directly to the disabled child. This helps preserve the disabled child’s eligibility.

The funds go into the special needs trust for uses that are not paid by the government or private assistance. Those relatives may want you to pay for the codicil to identify the special needs trust, but since it will preserve your disabled child’s eligibility for program participation, it’s often worth the expense.

Do I need to write a Will?
It’s a good idea to have a Will so the Court knows who receives your assets. Our state’s inheritance laws govern the distribution of your property if you don’t leave a Will.

Generally speaking, a surviving spouse inherits from a deceased spouse, with the proportion depending on whether the spouses have children from prior relationships.

If both parents are deceased, the children inherit equally. If there are no spouses or children, the grandparents inherit. If there are no grandparents, your siblings inherit. If there are no siblings, your property goes to your cousins. The inheritance laws are like drawing a family tree.

What if my child inherits from my parents and my child is under 18 years old?
Sometimes this happens when a grandparent names young children as beneficiaries on life insurance policies or names the young children in his or her Will. Children cannot receive money.

The parent has to go to court to be appointed as a conservator for the child. The court’s order appointing the parent as the child’s conservator authorizes the parent to receive the life insurance money or inheritance on behalf of the child. The conservator then has to deposit the funds into a bank account for the child’s benefit.

Each year the conservator has to submit annual accountings to the Court so the Court can oversee that the funds are being used for the child’s benefit.

What if I can’t afford to have a Will drafted? Are there cheaper alternatives?
You can name pay-on-death beneficiaries in your bank accounts. Ask your bank for the form then turn it in for their files. When you die, your beneficiary brings your death certificate to the bank as proof you died. The bank will transfer the money to your beneficiary.

I have a power of attorney – doesn’t that mean I’m in charge of the estate?
No. Powers of attorney die with the person. The agent has no authority after the principal’s death. The principal is the person making the power of attorney and the agent is the person who was named to act for the principal’s benefit.