Parent of a Minor Child? You NEED an Estate Plan!
by
Victor K Oraham on Aug. 06, 2014
Estate Estate Planning Estate Wills & Probate Estate
Summary: Designating a guardian of your minor child's person and property is a crucial part of the estate planning process.
Over the last thirty years, I have spoken with many individuals and couples who are not sure whether they need to have a will or estate plan. Often these conversations start with the potential client asking whether they are old enough to need an estate plan, or whether they have enough in the way of assets or wealth to justify preparation of a plan.
I answer these questions with a question of my own. I ask, "Are you a parent?" Very often, the answer is yes, and often, still, they are parents of minor children.
"Well," I say. "Then you have something MUCH more valuable than any bank account or piece of real estate; and just like you wish to protect your money and property, you need to take steps to protect your children."
The easiest way to make your wishes known in regard to whom you would like to raise your child or children in the event of your death and the death of the other parent, is to designate a guardian of the person and the property of the child or children in your Last Will.
Although most people name one individual to serve as both guardian of the person AND property, you could name different people to serve in each capacity. The guardian of the person is the caretaker of the minor and the guardian of the property handles the assets on behalf of the child. Again, one person can serve as both.
For a couple to agree on exactly who may be the BEST person to serve can be difficult. In one matter I handled, the couple were undecided for nearly a year, and I became worried that they would NEVER finalize their planning. I was concerned that something could happen to the two of them before things were settled. I sat them down and expressed my concern. I then got them thinking. I said, "I know you are having trouble deciding exactly who would be the best person to name as the guardian, but let me ask you something. I bet the two of you could agree on who it is in the family that you wouldn't want anywhere near your kids in a million years!" They laughed, looked at each other, and conceded, yes, they knew who that was. I then put it to them this way. I said, "Well, if something were to happen to the two of you before you finalize your planning, there would be nothing to prevent the person whom you, yourselves, acknowledge you wouldn't want anywhere near your kids from being the first one at the courthouse seeking to become their guardian." The couple finalized their plan within a week, and I reminded them that they could change their plan at any time, should they wish to do so.
I want to leave you with a couple of more points to think about.
If you and the other parent are no longer a couple, but the other parent still has parental rights, a designation in your will about whom you may want to raise the kids in the event of your death will not take precedence over the rights of the other parent. Unless there are circumstances that can be proven in court that show the other parent as unfit, the surviving parent will raise the child or children after your passing.
The guardianship designation in your Last Will essentially become "Exhibit A" in any guardianship proceeding on behalf of your minor children. Your choice of guardian is not automatic, and a court will still have to make a determination that placing your child and the property in the hands of the person or persons you have named is in your minor's best interests. That being said, the courts give great weight to the wishes of a parent. Essentially, the courts conclude, who better to know what is best for the child than mom or dad?
Finally, in my conversations with clients on this issue, they often suggest that they name a couple to serve. "We've decided on Jeff and Jane Smith", they might say. I then ask them whether it is Jeff or Jane with whom they have the closer relationship. One of them may respond, "Well, Jane is my sister." I then tell them that we should simply name Jane, alone."But we want both of them!", they say. I explain that, should Jeff and Jane split up at some point and the clients make no change to their estate plan and pass away, the court will have to determine to whom to appoint as guardian of the children. Of course, it is unlikely that, in that circumstance, Jeff would want the kids, but why make things difficult or unclear? "Think of it this way," I tell them. "If you name Jane, alone, and Jane and Jeff are still together,YOU GET JEFF FOR FREE!" This makes my point and puts a smile on their faces as they resolve these important issues.
If you found this article helpful, let me know whether there are any other issues or topics you would like me to address. You can reach me at lawyer@oraham.com
Wishing you all the best in life and in law.
© Victor K. Oraham (2014) All Rights Reserved. May not be reproduced without express permission of the author.