All parents, with or without significant assets, should have an estate plan in place to set forth their wishes for their children, which includes, among other things, the nomination of a guardian in the event that they have an untimely passing while the child is still a minor. In your estate plan, you can appoint a guardian (also known as a conservator) for your children upon your passing. If there is no plan in place, the court will appoint a guardian based on what it deems to be in the best interest of your children. Unfortunately, the court-appointed guardian may not be your first choice. From just a few brief hearings, it is often impossible for the courts to determine who is best suited to care for your children in your absence.
In some cases, where no clear-cut guardian is named, children may be sent to Child Protective Services to remain with a foster family until the court decides on a suitable guardian to take on the responsibility. For many parents, avoiding this scenario is their motivation to establish an estate plan.
Nominating a guardian can be a very difficult decision and one that should not be made without serious consideration, but we’re here to assist you throughout your decision process. Here is a helpful list of points for you to consider when determining who is best suited to raise your children:
- Age: You will want to make sure they are old enough to provide proper care (at least 18 years of age in most states) but young enough to remain in good health until your children reach adulthood.
- Commitment: Ensure that the guardian does in fact want to take on this responsibility.
- Temperament: Carefully consider what kind of person will mesh well with your children. If you have young or energetic children, you may want to make sure the guardian exhibits patience.
- Religious and moral beliefs: Do they share the same values as you and your spouse? Would they instill these in your children?
- Nature of existing relationship with children: You will want to make sure that this person has a good bond with your children and that there is a mutual comfort level.
- Location: If you prefer that your children not move out of their current home and/or school district, you will want to make sure that the appointed guardian resides close to you and intends to stay there until your child reaches the age of majority.
- Does the proposed guardian have other children? If so, does the guardian have enough time and adequate resources to devote to his/her own children in addition to yours?
- Finances: Can the candidate financially provide for your child if there are not enough funds available from your estate?
In the event that the guardian you have selected in your estate plan is unable to raise your children upon your passing, you should have two alternates who also meet the aforementioned criteria. This will ensure that your children are left in the hands of trusted relatives or friends and not in the court system.
If you have multiple children and would like to appoint different guardians to raise them separately, you may also outline multiple guardian appointments in your estate plan, however, this situation is generally not ideal for close siblings.
All appointed guardians must ultimately be approved by the court at the time of the parents’ passing. If a biological parent is still living, they will usually be named the guardian of the children unless evidence is presented that this individual is unfit to provide care to the children in question.
Trusts for Minors
In general, if an individual dies without an estate plan, his or her assets are distributed according to a formula determined by the state. In most instances, these laws pass wealth to both the surviving spouse and children. A properly crafted estate plan gives you control over this distribution allowing you to provide for specific people you designate and at the right time. We recommend that all parents of minor children create a trust that is designed to safeguard the inheritance for their children. Such a trust gives you the ability to outline how much money your children will receive, the age at which they will receive the inheritance and, to an extent, how they are to spend this money. This allows you to designate funds for their college educations and distribute their inheritance when they reach a certain age. The trust can also protect against potential creditors or even divorce.
Trust funds can be used to provide support to your children until they reach the age at which they may receive their inheritance. In your estate plan, you must also name a trustee who can ensure this money is handled properly. It is important to note that the trustee may be different from the guardian selected in your estate plan. This is recommended if the guardian is good with children but not with money.
Trusts are important in that they ensure you still retain control over your wealth after your death, in effect giving you greater control of your children’s futures. Trusts allow you to set aside funds for a surviving spouse, ensuring that your children will be provided for, even if your partner is not financially savvy or remarries after your passing. Furthermore, a trust allows you to outline how the trustee is to budget funds for each child. If you have one child who has a special need or requires additional training to develop a talent, your trust may outline these appropriations. This is particularly important if you have a child with a physical or mental disability who may require significant care beyond his or her eighteenth birthday.
Children are the greatest assets that parents have and an integral part of the estate planning process. You can ensure your children’s well-being with proper planning and while it’s distressing to think about leaving your children before they are adults, it is essential that this possibility be considered in order to plan for all eventualities. If you have not yet created a plan that adequately provides for your children, we encourage you to contact our knowledgeable team as soon as possible. As a parent, you have enough worries to keep you up at night. We can help.