by Thomas D. Begley, Jr., Esquire, CELA
Wills are designed to transfer property on death. If there is no Will, the State writes a Will for the deceased individual. While those Wills make sense for many people, they do not make sense for everyone. Assuming a client has mental capacity, the first step would be to review any existing Wills and bring them up to date, or, if there are no Wills, then to put them in place. Wills can contain appropriate tax planning techniques. Typically, the beneficiaries of Wills include a spouse, children, and other family member, friends or charities. In most states, the requirements to make a Will are that the individual must be 18 years of age or older and of sound mind. This is why it is important to make a Will before the individual diagnosed with Alzheimer’s deteriorates. The Will disposes of the individual’s property on death and appoints Executors and Trustees, if a trust is established in the document. Absent a Will, an Administrator must be appointed. While there is a statutory pecking order, this often leads to disputes among children and additional costs in the form of posting a bond.
If children are young, it often makes sense to include a Trust in the Will holding the child’s share of the estate to a certain age. The child must be at least 18 years of age to inherit, otherwise, the funds are placed in an account with the Probate Court and distributions are supervised by the Court. It often makes sense to hold the money in trust for a longer period of time, such as age 30. While the money is in trust, a Trustee, who is often another family member, distributes the money to or for the benefit of the child for health, education, maintenance and support, or even to buy a home. Therefore, all of the child’s real needs are provided for. Normally, the Trust will contain withdrawal rights giving the child the right to take the money for any purpose upon a certain age, typically 30, or if the child is inheriting a large sum of money, it might be withdrawn over two or three ages such as 30 and 35 or 30, 35 and 40. Care should be taken in selecting a Trustee. A sibling is sometimes not a good choice, because the child who is the beneficiary of the Trust may want money for things that are inappropriate and this may cause conflict between the children. Perhaps siblings or friends of the parents making the Will would be more appropriate choices.