An AARP survey reveals that two out of every five Americans over the age of 45 do not have a will. Studies of younger age groups understandably find an even greater percentage – three out of every four people under the age of 34 do not have a will.
Admittedly, sitting down to write a will is not the most pleasant of tasks, and most of us do not anticipate needing one until age 120. We are vibrant and oh-so-busy! Who wants to take the time to think through an unpleasant scenario? So we file the entire matter into the “when I get around to it” part of our brain and try to forget about it all.
Legitimate as they are, these feelings will not offer an ounce of assistance in a time of need. The ramifications of an “unplanned” departure from this world can be serious.
For many, the words “estate planning” bring to mind large inheritances and estate taxes. For many, the words “estate planning” bring to mind large inheritances and estate taxes. In reality, that is not the case, as estate planning is critical for everyone, regardless of income level or net worth.
Such planning simply refers to a process which should include writing a will and related documents, anticipating how to care for yourself should you become ill or incapacitated, ensuring care for minor children, purchasing insurance policies such as life and long term care (where appropriate), and more.
If a person dies intestate, or without a will, the state government determines the distribution of his or her assets according to its established “family tree.” Each state has a set order of distributees – relatives of the decedent who qualify for distribution of assets in the absence of a will. Many states (New Jersey included) provide that a surviving spouse inherits the entire estate of the deceased (at least where neither spouse had children from a different marriage). New York, however, divides the estate between the decedent’s spouse and children in all cases, with the children entitled to almost 50% of the estate in most instances. This presumably would not reflect the wishes of most individuals.
Moreover, while the laws may be quite logical, they do not take into account individual circumstances that can drastically change the manner the deceased would have chosen to distribute his or her assets.
Consider Debbie, 87, who receives home care and would like to live at home as long as she can. Debbie’s home, however, must be renovated somewhat to accommodate her home health aide and to make it more senior-friendly. Her husband, Irwin, recently died with an estate worth one million dollars but with only one hundred thousand dollars in liquid assets. Debbie anticipated receiving that amount and using it toward her home improvement costs. Regretfully, Irwin had never gotten around to executing a will. He was a New York resident, and accordingly, New York law governed the disposition of his estate. Under those laws their son Josh would inherit about half of the estate. Josh’s wife, Sylvia, has been waiting to use this inheritance money to finally redo her kitchen. She believes that Debbie should move into a nursing home (after transferring her remaining assets to her and Josh and applying for Medicaid!), and should not spend money on home restorations. Had Irwin executed a valid will providing that Debbie inherit all of his assets and that Josh receive his share only at Debbie’s death, Debbie would not be in this quandary.
The laws also do not account for the halachic aspects of inheritance. It is important to note that halachic authorities differ on the validity of a secular will in beis din; some halachic authorities accept it, while others do not. But without any sort of validly executed will, there is absolutely no basis in halachah for an individual’s wife and daughters to inherit a portion of his estate (other than the amount required under the kesuba). Even if the sons of the deceased individual do not choose to go to beis din to challenge the intestate distribution, serious questions of gezeilah (stealing) arise if the wife and daughters simply hold on to the assets distributed to them. While executing a secular will does not completely eliminate concerns of a challenge in beis din (for that other halachic documents are necessary, the discussion of which is beyond the scope of this article), it does mitigate the problems.
Guardianship of Minors Without a Will
Even more importantly, if minor children (under age 18) are orphaned from both parents without a will outlining who should be their guardian, a court proceeding is necessary to appoint such a guardian. Until the court proceeding is complete, the State’s Department of Social Services will determine temporary foster care for the children – an unpleasant, traumatic experience during an already difficult time.
The time and effort – and often, frustration – associated with any court proceeding should be noted. If there is also a dispute among the family as to who should be the guardian, the case becomes even more heartrending.
By executing a will, parents can plan for the care of their most precious assets – their children.
Power of Attorney
Who will manage a person’s finances, such as paying bills and handling business or investment matters, at a time when the person is not in a position to do so because he or she is cognitively incapacitated?
While legally competent, a person can complete a somewhat simple document known as a Power of Attorney in which an agent is appointed to act on his or her behalf if the need arises. If one did not appoint an agent prior to becoming incapacitated, his or her family members would be unable to attend to his or her finances without commencing a guardianship proceeding in the appropriate court. The proceeding is often a time-consuming and costly process, and could have been easily circumvented by completing a Power of Attorney prior to the crisis.
Medical Power of Attorney/Health Care Proxy
It is also extremely prudent for one to appoint an agent to make decisions regarding his or her medical care when he or she is unable to make such decisions. Observant Jews often will complete a Halachic Health Care Proxy, under which the agent is directed to make decisions regarding medical and post-mortem matters in accordance with Jewish laws and customs. A rabbi or organization with whom the agent should consult can be named within this document.
Committing one’s wishes to writing in the form of appropriate estate planning documents is a true act of foresight and consideration.
In our next article, we will focus on items that should be addressed as well as opportunities and concerns associated with planning your estate in today’s “digital age.”
This information is for general information purposes only. It is not intended as professional counsel and should not be used as such.
Brian (Baruch) Y. Greenwald and Hillel D. Weiss are the founding members of Greenwald Weiss Attorneys At Law, LLC, a NY and NJ based law firm focused on estate planning and related matters. If you have any questions relating to this article or would like additional information regarding estate planning, please visit www.greenwaldweiss.com or contact Mr. Greenwald at (718) 564-6333 or firstname.lastname@example.org, or Mr. Weiss at (732) 526-6333 or email@example.com.