If you don’t have a will, the court will appoint a person to administer your estate, and to distribute the assets in your estate to the individuals New York State defines as your intestate heirs. If you are survived by a spouse and children, your estate will be divided among your spouse and children. In cases where an individual was not married and had no surviving children, the entire estate will be given to the individual’s parents if they are surviving, and if not, to the individual’s siblings (and the surviving children of any predeceased siblings). If any of these heirs, such as a child, is a minor, the court will oversee the management and disbursement of the minor’s inheritance until the minor reaches 18. Additionally, if you are survived by a minor child in need of a guardian, the court will select a guardian for such child based upon what it believes is in the best interests of the child.
As part of complete estate plan, you need a will to specify who you want to receive the assets in your estate, and to provide for the management of any such assets that may be inherited by a minor, disabled individual, or anyone else who may not be able to handle substantial sums of money. You also need a will to designate the person you would like to administer your estate (who is referred to as an executor or a personal representative), and the person you would like to act as guardian of any minor children.
Although you can leave assets to a minor in your will, minors are not legally authorized to manage assets they inherit and thus the court will strictly oversee the management and distribution of any inheritance left directly to a minor until the minor reaches age 18. The best way to provide for minors, or any other person who is unable to properly manage his/her financial affairs, in your will is thus to create a trust for that person’s benefit in your will. You can direct in your will that upon your death some or all of your assets are to be distributed to a trust for the benefit of the person. You can name a trustee in your will to manage the trust assets, and can authorize the trustee to spend the trust assets for the benefit of the beneficiary to ensure the beneficiary’s needs are being met. Additionally, the trust does not have to end when the minor reaches 18, but rather you can specify any age which must be reached, or any event which must happen before the assets in the trust are fully released to the beneficiary.
If a minor does not have a living parent capable of acting as guardian, the court will always appoint a guardian for the minor based on what it determines is in the best interests of the minor. In your will, however, you can tell the court who you think would be the best guardian for a minor child of yours if you were not alive, and the court will strongly consider your wishes in deciding who to appoint as guardian, unless it felt honoring your wishes were not in the best interests of your child. Although you can designate spouses to act as co-guardians of your minor children, it is not a requirement that both a husband and wife be named as guardians. Also, although you may choose the same individual to act as both guardian of your minor children and trustee of a trust for their benefit, you can name different individuals for these two positions if you feel doing so would be best for your children. Finally it is a good idea to designate an alternate guardian in your will in case your first choice for guardian is unable or unwilling to act as guardian for any reason.
In order to be valid, the person making the will must be legally competent, and the will must comply with strict state laws regarding the manner in which the will is signed and witnessed. If the court does not recognize the will as being valid, your assets will be distributed as if you died without a will.
An executor, also referred to as a personal representative, is the person that will handle the distribution of your estate on your behalf, make sure the terms of your will are satisfied and take care of your debts and expenses. The job involves a significant amount of work and requires honesty, integrity and diligence. A personal representative, as well as an alternate personal representative, should be designated in your will.