Contributed by Frank May, an attorney at Brown Paindiris & Scott LLP
Guardians of minor children
If you leave children and a surviving spouse (or an ex-spouse) who is also a biological or adoptive parent of your children, your spouse (or ex-spouse) remains as guardian of your children. However, if you are the only living parent and do not have a will naming a guardian, the Probate Court will appoint one, which may well not be one of the persons you would desire. Often there is disagreement among family members, whose opinions would likely be considered by the Court, about who would be best – assuming there are any family members who survive you. A will generally avoids this uncertainty and potential family conflict, giving you the strongest control over a guardian appointment.
When a person dies without a will their estate (Assets and Property) is probated and distributed under the statutes governing “intestacy”. The Probate Court will appoint someone to gather your property, pay your bills and, eventually, distribute what is left according to a statutory scheme. You might think of it as a “statutory will” created for you by the legislature. Of course the legislature does not know you or where you might have wanted your property to go, and the statutes do not give the Court any discretion to consider any stated preferences you may have made during life.
Some examples under Connecticut’s “statutory will” include:
· You leave a spouse and children of that relationship –
o Your spouse gets the first $100,000 and ½ of the balance.
o Your children split the other ½ of the balance
· You leave a spouse and parent(s) but no children –
o Your spouse gets $100,000 plus ¾ of the balance
o Your parent(s) get the rest (1/4 of the balance)
· You leave parents and siblings but no spouse or children –
o Your parent(s) get everything
o Your siblings get nothing.
If you have a will you get to name guardian(s) for your minor children, the executor who will be appointed by the Court to manage the property you left behind and the details of who you want to inherit each item of your property. Don’t leave it up to the “statutory will” – find the time to make a will, and other planning documents that will implement your goals and protect your family. Talk to a knowledgeable estate planning attorney who will explain the necessities and the options to plan ahead, protect those you love and minimize delay and inconvenience in managing your property after your death.