Remarkably, although death is an absolute certainty, the vast majority of adults have not planned for their demise. While there are varied reasons for this, the thought that our mortality is years away is near the top of the list. However, to understand the fallacy of this rationale, consider the following hypothetical fact pattern.

Bob and Mary are the parents of three adolescent children. While out for the evening with friends, a drunk driver runs a stop light and crashes into Bob and Mary’s car, killing them both. As they had never made the time to plan for this unfortunate and unlikely event, there was no legal document in place to cover this eventuality. Consequently, the respective relatives of Bob and Mary had no choice but to seek guidance from the local probate court for many of the decisions that previously Bob and Mary made with respect to their family. Clearly, guidance was needed on such issues as how to manage the family assets, especially now that no breadwinner existed. Legal authority was also needed to determine the care of the children. Specifically, the relatives had to petition the court to appoint a legal guardian who would take physical custody of the children. This person would be responsible for taking the children into their home and raise them as his or her own. And, to complicate matters, Bob and Mary’s estates possessed a legal cause of action against the drunk driver for wrongful death. As it turned out, the drunk driver was quite wealthy and was 100% responsible for the crash. Thus, the court also needed to determine who would be responsible for receiving, investing, and managing the hundreds of thousands of dollars that would ultimately be awarded to the children, as heirs to Bob and Mary.

Without any guidance from Bob and Mary, the probate court judge is forced to make these decisions on his or her own. Even in the best of circumstances, there can be a difference of opinion between two families otherwise unrelated except for the marriage of Bob and Mary. So, Bob’s adult siblings were arguing with Mary’s adult siblings as to who would provide the best care for the children. And, with a large financial award from the drunk driver looming, it is not unreasonable to question the motives of the petition parties. Greed is an acknowledged human weakness and can sway the judgment of even the noblest of human spirit. So, it is easy to see how this unfortunate event can lead to chaos and discord despite the good intentions of all concerned.

All of this could have been solved if Bob and Mary each a prepared a valid Will. These instruments would have set forth the roadmap for the taking care of their family. A properly drafted Will would have:

  1. Appointed an executor, who is the legal successor-in-interest to the deceased person. This person would have the legal authority to marshal assets, pay bills, and make distributions for the benefit of the children. And, further, in this instance, the executor would be the person who would spearhead the pursuit of any legal claims against the drunk driver.
  1. Appointed a legal guardian for the children. This person would have the legal right to have physical custody of the children.
  1. Provided the structure for the management of the family assets and the ultimate distribution to the children.

The obvious advantage in drafting a Will is to allow Bob and Mary to make these types of critical decisions involving their family rather than a judge who has no prior history with them. In most circumstances, the parents are the best people to decide who should act on their behalf in the event that they are no longer present to make these decisions for themselves. While no one can be an equal substitute for the parents in caring for the children, there is nobody better than them to set the roadmap for their children’s lives.

In today’s society, parents often make tremendous sacrifices of their time, energy and money to provide opportunities for their children. Thousands and thousands of dollars are spent on their education, sports teams, dance classes, music lessons, SAT prep courses, etc. The motivation for this effort is to provide a solid foundation for the child’s development into adulthood. So, it is puzzling that most parents of young children don’t take the time to develop a contingency plan to continue their efforts in the event that they are no longer alive. A Will can be used to lead the way for continued care, support and guidance of the children. The preparation of a Will containing provisions nominating an executor and guardian and providing for management of the family assets should merely be considered as another essential parental duty for those who want to provide the best for their kids.

 

 

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