Estate Matters: Think you don't have a will? You do!
Think you don't have a will? You do!
The bad news is that seven out of ten Americans don't have any real plan for the distribution of their belongings or the guardianship of their minor children when they die. The good news is that the state has a default "will" to help distribute your property and raise your children--**it's intestacy laws. Unfortunately, it's not very good. Here is what your "will" provides if you haven't taken the time to properly draft and execute a valid last will and testament.
Your spouse will receive $15,000, with half of the balance of your estate going to your spouse and half to your minor children. After being appointed as guardian of any minor children, your spouse will be required to render an accounting to the Orphans' Court regularly and of how, why and where monies were spent for the children's proper care. Further, the spouse will be required to procure a performance bond to guarantee proper judgment in the handling, investing and spending of the children's money, unless proven unnecessary. **The children will have the right to review the financial records of their remaining parent pertaining to all financial actions with their money. **When they reach eighteen they will have full rights to withdraw and spend their respective shares of the estate. **No one will have the right to question your children's actions on how they decide to spend their respective shares.
Should your spouse survive you, they will have the option of appointing, by will, guardians of your unmarried minor children. In the event your spouse predeceases you or dies while the children are minors, the court will choose for you. If the court wishes, it may appoint anyone who petitions the court and is interested in the welfare of unmarried minor children. The court may appoint any guardian chosen by your child of fourteen or more.
**Your spouse will likely be appointed to handle your estate as personal representative, but will be required to file a performance bond to guarantee that everything is done properly. Absent prior approval of court, no funeral or burial expense in excess of $10,000 may be paid for funeral and burial expenses from your estate. Should your spouse die after remarrying, their new spouse will be entitled to take half of everything (or a third if there are surviving children of the two), regardless of any intention stated in THEIR will. Their second spouse shall have the sole right to decide who is to get this share, even to the exclusion of your own children.
Under Federal and state tax laws, there are certain legitimate avenues to lower death taxes. Without a will, you might be directing that your money instead be used for governmental purposes rather than for the benefit of your spouse and children.
Disclaimer: This information is provided for general information purposes only and is not intended to be a legal opinion, legal advice or a complete discussion of estate planning issues. The previous information refers to Maryland provisions - your state's intestate provisions may differ. Each actual situation is different and you should seek independent legal advice from an attorney for specific information.
Charles R. Stewart is an attorney in Hagerstown who practices exclusively in Wills, Trusts, and Estate Planning (www.LawOfficeStewart.com). Please send questions to PN@LawOfficeStewart.com