Legal Question in Wills and Trusts in New York

Re: Designating a legal guardian should both parents die

As stated, a properly drawn Will can cover all of your concerns, from physical guardianship of the children while they are minors, of both their person and property (including their being beneficiaries of the retirement plans), and the Will can establish a trust for their benefit (the people named as guardians can also be the trustees, although many people name people as the physical guardians and other people, who may be more financially knowledgeable, as the trustees). The trust can extend beyond majority (usually age 18). I strongly suggest you consult an attorney familiar with these matters, even if it may cost several hundred dollars or more. Do not be penny wise, pound foolish, when your areas of concern are so important and if not handled properly by you, could run thousands of dollars later to correct, modify or adjust any mistakes you made due to your own lack of knowledge in these areas.

Re: Designating a legal guardian should both parents die

If you're concerned about cost you can purchase a do-it-yourself kit for a will. You just won't be sure of its validity until, of course, you're dead. More likely than not, you'll create either a estate tax issue (unlikely, given the exemption) or a gift tax (and associated income tax) issue for your heirs.

But, if your proposed estate is small enough you can likely get by with a kit. The only way to tell is have an attorney run the numbers by creating trial tax returns. Or you can try to do it yourself, again, with the help of a kit -- again, however, you'll simply be unsure of the validity of your work until it's too late.

Re: Designating a legal guardian should both parents die

Simply having a document notarized will not suffice as a testamentary statement, it must be made in the format of a will.

It is possible to set up a provisional trust in a will for the benefit of minor children.

Dealing with the guardianship issue is one which comes up all the time and I handle it frequently.

You should be aware that simply designating a guardian doesn't ensure guardianship in the person designated. Children are not possessions and cannot be willed but a parents preferences are influential and taken into account should anyone challenge the designation of the parent's choice of guardian after her death.

Should you like to discuss this or any other legal matter, you can e-mail me for more information about low cost face-to-face, on-line, or a telephone consultation with a lawyer in our office.

Re: Designating a legal guardian should both parents die

You can, of course, do everything yourself, but without an attorney, you will never know whether it was done properly.

You may specify your choice for a guardian in your Will. You may set up a trust in your Will, or you may give the property to your children and name their guardian as the guardian of their property also. There may be other options available to you depending on all of the facts and circumstances of your case.

If you need assistance with this or any other matter, please feel free to contact me.