Single Parents and Wills: The Appointment of a Guardian for Your Child

One of the most important decisions that a single parent can make regarding the care of a minor child is the appointment of a testamentary guardian in the event of the parent’s death. The appointment of a testamentary guardian is done in a Will. In essence, a guardianship clause in a Will determines who will get custody of the child upon the parent’s passing.

If you are divorced, then it is very important that you have a Will. While the remaining parent will likely become the guardian of your child, unless that parent has been declared unfit, the Will of the last parent to die will determine the guardianship of any minor child. To illustrate: if a divorced mother with a Will predeceases her divorced husband who later dies without a Will, the mother’s designation of a testamentary guardian will prevail.

How should you choose a testamentary guardian for your minor child? There are several factors to be considered, such as:

  • the health of the guardian;
  • the person’s values;
  • whether the proposed guardian has children already and, if so, whether their ideas on parenting are in agreement with yours;
  • if religious upbringing is important to you, whether the proposed guardian shares your beliefs;
  • whether the proposed guardian shares your educational values;
  • whether the person is willing to comply with all of the court procedures on a yearly basis;

You should consider appointing an alternate guardian who will also meet the same criteria as the designated guardian in case the designated guardian cannot take on the duties in the event of your death. Note that, depending upon the age of the minor child at the time of the parent’s death, any designated guardian or alternate may have to serve for quite a long time. Therefore, a designated guardian should reflect carefully upon the duties involved before making the commitment.

Regardless of the presence of an ex-spouse, a single parent will want to assure the unencumbered transfer and management of non-probate assets for any minor child through a Will. If your minor child is named as a beneficiary of your life insurance policy or retirement plan, then that property will pass outside of probate directly to your child. In your Will, you may want to consider either appointing a separate guardian for your child’s property or establishing a testamentary trust.

If there are multiple children, provision may be made in the testamentary trust to pool the assets in order to afford the trustee discretion in caring for differing needs of the children. This is especially important if there is a special needs child. Without a Will, each child will receive equal shares without any regard to the different care needs of each child.

In the case of a testamentary trust, the parent (grantor) will want to designate a trustee to manage the proceeds of the trust until the child reaches majority. The designated trustee must agree to meet annually with the probate court and show that the trust assets are being dispersed responsibly.

A single person should consult with an attorney to draft a Will that will provide for the proper care of minor children in the event of the parent’s death. The attorney will assess each individual situation and provide guidance as to how best to protect the minor children and their assets.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

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Single Persons and the Special Power of Appointment: The Stuff of Your Life

Space is decidedly the “final frontier” for New Yorkers.  We measure ourselves by the sum total of our square feet of space, and that may include a self-storage unit somewhere in commuting distance.  In our precious space, we store the stuff of our lives.  Some of us get very creative and use our kitchens for extra storage space!

While we are busy collecting stuff, we rarely have time to reflect upon the unintended consequences of this accumulation.  When we die, who will dispose of our stuff?  And to whom will it go?  These questions are particularly significant for singles who do not have a Will.  In New York, the statute that governs the distribution of the estate of a person who dies without a Will is EPTL § 4-1.1. For example, if you are single with no children and you die without a Will, New York State will award your property to your parents. If your parents are deceased, then your property will be divided among your siblings and their heirs. If you have no siblings, your property will go to the State of New York.

With a Will, a single person can create a special power of appointment that will allow him or her to control the disposition of his or her belongings.  For instance, you may give a special power of appointment to a close friend or relative to distribute your belongings to your then surviving family members, with any remainder going to a charity named by you.  The person holding the special power of appointment then has the discretion to choose who gets what. 

There are two benefits associated with a special power of appointment.  First, it prevents family squabbles over the division of your belongings.  The person holding the special power of appointment makes that determination.  Secondly, if a beneficiary refuses a gift for any reason, the gift reverts back to the estate to be distributed to other surviving family members.  And your book collection or your collection of porcelain statuettes can be kept intact and given to a family member who will cherish it.

Having a Will with a special power of appointment will provide a single person with peace of mind, knowing that there will be a smoother distribution of their belongings lovingly acquired during their lifetime.  An attorney can assist you with drafting a special power of appointment in a Will to suit your specific needs.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.

I am Single: Do I Need a Will?

If you are currently single, you are not alone.  Over 40% of all adults 18 years and older are single.  And if you live in Manhattan, you live in the borough with the most singles in New York City (61.4%).  Chances are that you are working, have a 401(k), some assets, and maybe a pet or two.  Chances also are that you don’t have a Will.

Why is this an important issue?  Because the percentage of single people in this country is rising faster than the percentage of married persons. According to a 2008 U.S. Census Bureau report, singles in this country break down statistically into the following groups:

95.9 million:  Number of unmarried Americans 18 and older in 2008. This group comprised 43 percent of all U.S. residents 18 and older.

53%:  Percentage of unmarried Americans 18 and older who were women.

61%:  Percentage of unmarried Americans 18 and older who had never been married. Another 24 percent were divorced, and 15 percent were widowed.

15.8 million: Number of unmarried Americans 65 and older. These older Americans comprised 16 percent of all unmarried and single people 18 and older.

87:  Number of unmarried men 18 and older for every 100 unmarried women in the United States.

52.9 million:  Number of households maintained by unmarried men or women. These households comprised 45 percent of households nationwide.

32.2 million:  Number of people who lived alone. They comprised 28 percent of all households, up from 17 percent in 1970.

Source for statements in this section: America’s Families and Living Arrangements: 2008

In an article titled “Single New Yorkers, Ahead of the Pack,” the New York Times tacked the issue of what “single” means today (it is an especially relevant term as we all fill out our Census forms).  In New York City according to the American Community Survey conducted between 2005 and 2007, the Times reported the following numbers of singles by borough:

  • Staten Island is 41.0 percent single with 26.5 percent never married.
  • Queens is 46.3 percent single with 30.9 percent never married.
  • Brooklyn is 52.4 percent single with 37.0 percent never married.
  • The Bronx is 57.6 percent single with 41.6 percent never married.
  • Manhattan is 61.4 percent single with 45.9 percent never married.

Many single people do not have a Will. That may be because they believe that their worldly possessions will go to their families; that one should draft a Will only if there is a spouse or a child involved; or that they do not have enough assets to make a difference. And while these assumptions may be true in many cases, many singles have not considered the consequences of dying without a Will (intestate) on their families. Writing a Will may be one of the kindest acts that one can do for one’s family.

So why is it so important for a single person to have a Will?   In New York, the statute that governs the distribution of the estate of a person who dies without a Will is EPTL § 4-1.1.   For example, if you are single with no children and you die without a Will, New York State will award your property to your parents.  If your parents are deceased, then your property will be divided among your siblings and their heirs.  If you have no siblings, your property will go to the State of New York.

But is that always the best result?  Let’s imagine some scenarios for Client X, a single person living in New York, with two siblings and both parents living.  Let’s say that one of Client X’s parents becomes seriously ill requiring nursing home care.  The ailing parent meets the Medicaid income eligibility standards for nursing home care.  The non-ailing parent goes to live with Client X’s eldest sibling.  Client X dies without a Will, leaving behind substantial savings that get awarded to Client X’s parents.  As a result, Client X’s ailing parent may now be required to contribute towards the nursing home costs.  Instead, Client X could have left his savings to his siblings in his Will,  with a greater share to the sibling taking care of the non-ailing parent.

Client Y is single and an only child whose parents have predeceased her.  Client Y owns her home.  If she dies intestate, the home will escheat to the State of New York.  But Client Y is a loyal alum of Education University (EU) and attends every alumni function.   Instead of her home going to the State after her death, she can gift her home to EU as a charitable bequest in her Will, and designate that any proceeds from the sale of her home after her death be used for student scholarships.

As these two scenarios illustrate, a single person should draft a Will with the assistance of an attorney to take into account the best interests of loved ones left behind.  Your attorney will assess your individual needs and draft a document that will suit your interests and the interests of those who remain after your passing.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on “Sign me up!”  under Email Subscription on the left-hand side of the page so that you can receive a notification when the next installment has been published.  Thank you.