The Kiley Law Firm Blog

As a parent of a minor child, you may in your will designate a guardian for your children in the event that you die during their minority.  The New York State Domestic Relations Law (DRL) § 81 authorizes the appointment of guardians by parents.  The Surrogate, who is the judge who handles estate matters, will generally approve your designee, provided he or she is not a person of dubious character.

Of all the decisions parents make when preparing their wills, the most difficult will likely be the choice of a guardian.

Here are some issues to consider before you make your choice:

(1)        Geographical Proximity (“Something tells me we’re not in Kansas anymore, Toto”):  Your children will likely have to move in with their guardian.  If you prefer that they continue to live in your neighborhood, then your brother Travis who owns an Alpaca farm in Pocatello, Idaho may not be a good choice.

(2)        Your Children’s Choice (“You’re going to send me WHERE!?”):  This is not a consideration with young children, but once your children reach a certain age, the courts will give some “deference to their preference.”  Either way, it’s good to make sure that your children will be comfortable with your selection.

(3)        Your Spouse’s Preference (“Hey, they’re my kids, too!”):  If you die, the children will come under the care of their other “parent and natural guardian.”  But, if he or she dies first the court will likely confirm your choice.  Still it’s best if you confer and come to an agreement on the same person or persons.

(4)        Religious, Moral and Political Beliefs (Better Not Choose Uncle Buck!):  Your good friends and loving relatives may not share the same beliefs as you do.  Give this consideration, as your children will be under their guardian’s influence.  It’s not likely that your children will go to church if their guardian doesn’t.

(5)        Age and Inclination (“Been there; done that.”):  Make sure that the person you choose choice is young enough and willing to assume the awesome responsibility of raising your children.  No matter how wonderful your children may be, parenting is still a job.  Also, consider that your babies will be minors until they turn eighteen.  Grandma and Grandpa may not be up to the task in fifteen years.

(6)        The Guilt Factor (It’s not just reserved for Catholics and Jews): Your friend or relation may agree to be the guardian of your children because they love you and your child.  Make sure that they feel comfortable to say no, if they believe that the burden is too great.

(7)        The Old Woman Who Lived in a Shoe Problem (Or . . . never have more children than you have car windows.):  Consider whether your prospective guardian has too many other children.  They may always have room for your children in their hearts, but make sure they have enough rooms in their house.

(8)        Financial Stability: (“A Fool and Your Children’s Money Are Soon Parted”): Your children’s guardian need not be the same person as the trustee who will invest their assets and manage their money.  Nonetheless the guardian should be good with money.  At the very least, his or her responsibility in this regard will impart an important lesson to your children.

Too many people postpone making a will because they cannot agree or decide on a guardian.  Never fear.  There is likely no perfect choice, as you can’t expect that your friends or family will make all the same choices you might make.  Nevertheless, consider the pros and cons for each possible choice.  Make up your mind and don’t delay making your will.

A will has no force nor effect until it is probated and the Surrogate determines that it is genuine, that the testator had testamentary capacity, that he was not unduly influenced by another person, and that he published the will before signing it. When a proposed executor submits a probate petition, he must notify all of the deceased’s heirs at law. Each must either waive his or her right to contest the will or be cited to appear in court to oppose the will. Problems arise when the testator’s family cannot be located. Petitioners frequently must hire a genealogist to locate lost heirs. The task becomes more difficult and expensive when the decedent emigrated from another country and his birthplace is unknown.

Yesterday, I met with a client who must locate the heirs of a man who was born somewhere in eastern Europe. Thinking about this problem and given that today is St. Patrick’s Day, I started wondering how difficult it would be to probate St. Patrick’s will.

Some historians have postulated that St. Patrick was not a living person, but a fictional character of legend.　They’d get an argument, but not absolution, if they confessed their sinful thoughts to Father O’Shea this morning at the Cathedral which bears the Saint’s name.　And they’d get a beer in their face but not in a glass if they voiced their opinion today in any Irish pub in Woodside.

For the true believers, St. Patrick is as real as the sun setting over Galway Bay. 　But experts dispute his birthplace.

Various accounts have St. Patrick being born in Scotland, see: http://www.catholic.org/saints/saint.php?saint_id=89 and in England, see: http://www.vortigernstudies.org.uk/artgue/guestjelley.htm and in Wales, see: http://www.historic-uk.com/HistoryUK/Wales-History/StPatrick.htm and in Boulogne, France (as per Dr. Lanigan, author of The Ecclesiastical History of Ireland) as referenced in this scholarly article, http://ads.ahds.ac.uk/catalogue/adsdata/PSAS_2002/pdf/arch_scot_vol_005/05_261_284.pdf and, in Gaul, see this scholarly article: http://www.sangrial.com/pdf_files/saintpatricksfamily.pdf . To confuse things even further, Gaul was a Roman province which covered the area from France, Belgium, and westernmost Germany, see: http://en.wikipedia.org/wiki/Roman_Gaul.  Since St. Patrick was a Roman Citizen and the territory of Gaul also included the Italian Alps, even the Italians have laid claim.　

While the proponent of the will would have a huge problem, his birthplace is not of concern to his many fans.　　We can all share St. Patrick today, because everybody’s Irish on St. Paddy’s Day.   Slainte!　　

It’s a dilemma that every estate planner faces. Mrs. Martinez’ grandniece, once removed, (GNOR) makes an appointment for her to make a will. At the appointed time, they arrive together . . . alone. Mrs. M. is a lovely lady somewhere between 80 and 120 years old, has a strong accent and doesn’t hear well. GNOR offers to sit in on the consultation and translate. During the introductions, GNOR explains that Mrs. M. is a widow and lives in a large, old house. Her four grown children live out-of-state. GNOR lives in Mrs. M’s basement, pays no rent, but helps with the chores. She says that Mrs. M. wants to give her a power of attorney and devise her the house when she dies. She offers:

My Aunt’s an old woman who came from Peru;
She needs an estate plan but doesn’t know what to do
Her children are absent, don’t visit or call
As God is my witness, they don’t help at all.
One is a doctor who lives in St. Paul
Another’s in Georgia and speaks with a drawl
I moved in last year when my aunt had a fall
I’m here to help her for the long haul.

At the ends of the story Mrs. M. starts to bawl. What’s the real story? Should my skin start to crawl? As I offer her a tissue and a glass of water, I suggest that I speak to Mrs. M. privately.

Many elderly people find themselves alone when their spouses die and their children are grown. They need assistance and companionship but their traditional family supports have collapsed. So they look for other options. Hopefully they have well-meaning extended family members or friends who fill the breach. But too frequently, they are preyed upon by grifting wolves who cloak themselves in a shroud of love and friendship. The lawyer’s job is to help the client tell the difference. It’s a delicate but necessary task. You must separate the client from the “helper” so that you hear the clients’ wishes without interference. It’s essential to know if he or she is able to make an independent decision and isn’t unduly influenced. If you sense that the “helper” is helping him or herself, it’s time to pull the plug on the consultation as a lawyer is ethically estopped from preparing an estate plan for a client who is unduly influenced or mentally impaired. It’s a hard call, especially when the client is a stranger and seems to be in danger. The meeting is fleeting and physical infirmities like hearing loss or speaking impairment, may make an elderly person seem mentally incompetent when they are not.

The elderly client and the “true helper” are better served when the lawyer makes careful inquiries such as I have described. If he doesn’t, the will may be denied probate when a distributee challenges it.