The Importance of Estate Planning for Young Families
As an attorney who works with many parents in their 30s and 40s, I find most are focused on building their careers, accumulating assets, and making decisions that affect them in the here and now. While an increasing number are planning for retirement, very few give much thought to their estate plan and the potential problems that could arise without one. What they fail to realize is that their avoidance of these critical issues can have serious, if not devastating consequences for the people they love, and that a minimal amount of time and effort can prevent a tremendous amount of potential hardship.
Let’s look at an example to get a better understanding of the necessity of planning. Charles (36) and Sarah (33) are a married couple with two young children living in New York. Both are employed in professional jobs. Aside from some basic financial necessities, like enrolling in their 401(k)s and purchasing $500,000 term life insurance policies, they have put all other planning on their “to-do” list for when they can get around to it.
Unfortunately, Charles and Sarah are ill prepared for an unexpected tragedy that would leave their children without parents. Drawing up wills has sat uncompleted on their to-do list since their first child was born. Charles incorrectly believes that, should something happen to him, everything would simply pass on to Sarah. He also thinks that his parents would automatically take custody of the children if anything happened to both of them. And, because they both named their children as contingent beneficiaries on their retirement and life insurance plans, they feel assured their children’s finances are secure.
No Will? No problem. The state will write one for you: What Charles and Sarah don’t understand is that they actually do have an “estate plan,” except, instead of reflecting their own wishes for the disposition of their assets and guardianship for their kids, the plan reflects the laws of their state (in this case, New York).
Who will take care of the children? Without specific instructions as to who will take care of the children, the court picks a guardian. Each side of the family will most likely have different views on who should take the kids. Should it be Sarah’s sister who lives in New York or Charles’ brother, who is better off, but lives in Florida? This can become an ugly fight, and instead of families focusing on grieving, they can be torn apart fighting over who will take care of the children.
Who will control the children’s assets? The person whom the court designates as the guardian will likely be the person who manages and controls the assets left to the children. That person may be the best person to raise the children, but not necessarily the best one to manage finances. (A will can specify a different guardian for each role, if desired.) Also, naming minor children as contingent beneficiaries instead of having the assets being placed in a trust for the benefit of the children is fraught with hazard. Unless otherwise specified, the children will automatically control the assets when they turn 18. Imagine that $500,000 life insurance policy and the house being transferred to your child when s/he turns 18. Will s/he know how best to oversee the assets?
All assets may not go to Sarah: If Charles should predecease Sarah, or vice-versa, any assets that are subject to probate, such as savings accounts, non-qualified investments, or separate property, will be split evenly between the spouse and the children. That means that the spouse owns half and the children own half. If the surviving spouse wants to sell or make use of the children’s assets, it must be for the benefit of the children.
Incapacity: If either or both of them survive the tragedy, but are incapacitated and unable to make financial or health decisions, without a power of attorney, a member of the family will not be able to take over the finances of the household without court intervention. If there is an end of life decision to be made, then without a designated health care proxy or a living will, the family must once again go seek the court’s permission to act.
Estate Planning for the Expected
Estate planning is not just for the wealthy, nor is it limited to the process of distributing assets after you die. It also provides certainty for you and your family when the unexpected occurs during your lifetime. While estate planning can be expensive and complex when dealing with mega-estates and multi-generational families, it also offers some very straightforward and inexpensive legal protections for the average American family.
In the case of Charles and Sarah, they could protect their estate and their family with the following 4 documents:
A Will would become the guiding document for the court, naming an executor and a guardian. A will also specifies how assets are to be distributed. A trust for the benefit of the children can be created in this will, and can control when and how the children receive assets.
Powers of Attorney would ensure that financial and business needs can be handled, without delay.
Health Care Proxies and Health Care Directives (Living Will): A Health Care Proxy designates who can make medical decisions for you in the event you become incapacitated. A Living Will allows you to state your end of life preferences and your view on life support and artificial nutrition and hydration.
Seeking Estate Planning Guidance
You may be young now, but the best time to begin arranging your estate is the moment you begin to think about it. If you chose to use some of the legal platforms such as LegalZoom.com, Nolo.com, and RocketLawyer.com, keep in mind that estate laws are complex. When planning an estate, no matter the size, the stakes are high, and it can be prudent to seek the advice of a qualified estate planning professional. With the national average cost for these four important documents being $1,000, its almost irresponsible to not take these steps. (Forbes “Rites of Passages” July 16, 2012).
Elisha Wellerstein, Esq. is the founding principal of Wellerstein Law Group, P.C. with offices in Queens, Nassau, Suffolk and Manhattan. Elisha can be reached at (718) 473-0699 or [email protected]