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Why you need a Last Will & Testament

January 2018 | Candace Dellacona, Esq.
We often get calls to the National Legal Office hotline from NYSUT members about the importance of a Last Will & Testament, asking “If my husband/wife and I do not own anything or everything is jointly owned, why do we need a Last Will?”

Regardless of one’s assets (or lack thereof,) every parent of a minor child should absolutely have a Last Will & Testament in which they appoint a Guardian for their minor child. In New York State, the only way to appoint a Guardian for your minor child in the event of your death is by Will or by real property deed (an outdated option).

A Last Will & Testament is your only opportunity to articulate your wish for who would be best able to raise your child in their best interest. The Family Court goes to great lengths to make sure that a parent’s wish regarding guardianship is effectuated, provided that the named Guardian(s) is appropriate and willing to take on this tremendous responsibility.

New York State Guardianship law does not have any restrictions on age, gender or marital status of chosen Guardian(s) for your child, simply that the arrangement with the chosen person/people be in the best interest of your child. A Guardian’s role controls all decisions related to your child, including housing, schooling, religious education and general welfare.

It is important to note that you can also appoint a Guardian of your child’s property. For example, if the person you wish to appoint as the Guardian of the person of your child is loving and kind but a terrible money manager, you have the option of appointing a person to manage any monies of your child (that he or she may inherit via life insurance or other investments).

This person is referred to a Guardian of the Property of your minor child (as opposed to the Guardian of the Person of your minor child). In many ways, separating this role is less burdensome to the Guardians of your children and their stated purpose is clear and distinct.

If you are a single or divorced parent, there is a presumption at law that the child be placed with the remaining natural parent; however, anyone can challenge such placement. For example, if you are a divorced parent with sole physical and legal custody of your minor child, and the remaining parent has been determined not to be fit for extensive visits or is required to have supervision during interaction with your minor child, it is imperative that you name a Guardian on behalf of your child whom you believe would be a more suitable choice than his or her remaining parent.

Certainly the remaining parent can challenge the matter, but by stating a different individual in your Will, the Court will conduct a hearing on the matter to determine the best interest of your child.

In addition to stating who you think would be the most appropriate choice as a Guardian of the person or property of your child, one can also state in a Will whom you do not think should even be considered as a Guardian for your child, in the event that there is a court-contest in the matter.

It is important to note that the reason behind your rationale should not be stated in the Will (as Wills are public documents), simply that a particular person should not be considered as a Guardian for your child.

In the event that both you and your spouse die without a Will appointing a Guardian for your child, the Family Court appoints a Guardian for your child. This means that family members from both the maternal and paternal families of the orphaned child would be vetted in a Family Court setting to determine who might be the best person to guide your child into adulthood.

This process is obviously flawed for a number of reasons, namely, because it lacks your input to determine whom you believe would be the person to best raise your child in your absence.

Finally, once it is decided who would be best to raise your child in the event of your untimely death, you should ensure that your choice of Guardian actually is up to the task by having a very candid discussion about your desire for him to act as Guardian.

If you have any questions regarding this process or factors in determining who might best serve as your child’s Guardian, we encourage you to contact your Legal Service Plan’s National Legal Office.