Am I Too Young to Have a Last Will and Testament?

By: Anthony J. Enea, Esq.

It is not unusual for a married couple in their 30s or 40s with children to neglect having a Last Will and Testament. The most common reason often given for not having a Last Will is that they didn't believe that it was necessary at their age or that they hadn't had the time to get around to it. Unfortunately, neither reason is very good.

If the couple is lucky enough to own assets jointly with rights of survivorship and/or have each other as a named beneficiary on an account, upon the death of the first spouse, the jointly held assets (bank accounts, house, etc.) will automatically pass to the surviving spouse by operation of law. However, if the first spouse were to die with assets in his or her name alone (which many of them do) without a joint owner or named beneficiary, the absence of a Last Will upon their death can have the following significant negative consequences:

1. The absence of a Last Will can result in the need for an Administration proceeding (not a Probate Proceeding) with the Surrogate's Court of the County where they reside. Virtually anyone can apply to be the administrator of the decedent's estate, which could result in competing petitioners. With a Last Will one is able to nominate whom he or she wants to be the Executor of his or her Last Will as well as any alternate Executor. The Executor is the individual nominated to handle the administration (marshaling of assets, payment of bills, and distribution of assets to beneficiaries) of one's estate upon your demise.

2. The absence of a Last Will can result in one's estate passing to family members who you do not want to receive the assets. Without a Last Will, one's estate will pass pursuant to the laws of intestate distribution. Thus, those who will inherit from one's estate will depend on whether one is single or married at death, and the different categories of family members (spouse, children, parents, siblings, nieces, nephews, cousins, etc.) that one has surviving at death.

3. Another negative consequence of any part of one's estate passing to children through intestacy (without a Last Will) is that one's children will be legally entitled to estate assets upon reaching the age of 18. In a will, one is able to include a trust provision that would allow the Testator to nominate a trustee(s) and specify the terms and conditions for the distribution of estate assets to children. For example, if one has a Last Will with trust provisions one can delineate the reasons for utilizing the funds (income and principal), such as for health, education, maintenance, and support. Most importantly, one can specify the age or ages that one wants his or her children to receive assets outright, or one can specify that the assets remain in the trust for the child's benefit during his or her lifetime. Additionally, the failure to have a Last Will would result in foregoing the possibility of creating a third party Special Needs Trust for the benefit of a child with disabilities.

4. Finally, not having a Last Will when one has minor children limits the opportunity to nominate the individual(s) that one would want to be the legal Guardian(s) for one's children in the event both parents are not surviving. Without the written expression of one's wishes the Court may be faced with competing applications for guardianship of minor children. One can only imagine the legal ugliness that would ensue. The nomination of Guardians by the parents in a Last Will is given significant weight and consideration by the Court.

As can be seen from the above stated, the consequences of not having executed a Last Will are significant. Every adult, whether they are married, single, have children, or don't have children will benefit from having a Last Will and Testament.