One of the most common goals we see clients have when setting up an estate plan is to make sure their children and grandchildren will be provided for. Now, no two families are the same. What works in one situation may not be the best for another.
Generally speaking, the main things to consider are:
When looking at the ways in which assets will pass to an heir in an estate plan, you are looking at either a will or a trust. Some things, like guardianship, are handled in a will but trusts can address most other things. Trusts are much more flexible and can create a lasting legacy that will persist for generations.
If you pass away without any plan, then you have no control over what happens to your assets when you pass. Similarly, you won’t be able to name the person you would want to manage your estate.
If you have underage children, or an adult child with special needs they typically require care from a competent and responsible caretaker. If one of the parents passes away and the other is available, the surviving parent will usually be the one to care for the child. However, what happens if you pass together?
It’s not uncommon for close family members to pass at or near the same time. When tragedy strikes, such as a car crash, everyone involved is impacted. Through the use of estate planning documents, you can name the person you want to be the guardian of your child if something happens to you.
The place where you name the person to step in and care for your children is in a will. The process requires probate proceedings before a guardian is appointed. While a judge ultimately has to sign off on your choice of guardian, that person is given preference by the Court. After a certain age, the child also has some say in who will be their guardian.
The appointed guardian will be responsible for not only the physical well-being of the child but usually the financial resources as well. If the child inherited property, bank accounts, life insurance, or real estate from you, that all needs to be managed in the best interests of the child. When that child turns 18, he or she can do whatever he wishes with the inheritance. Unfortunately, if you gave an 18-year-old a large inheritance, it’s not usually going to go well. All too often money is wasted, assets spent and kids get into trouble. This can all be addressed by the use of a trust.
If you complete a will naming the guardian(s) it will usually be a fairly simple process where that person will apply for guardianship to the probate court. They are likely to be granted guardianship as long as everything checks out properly.
However, if you fail to name someone, we often see multiple family members or friends want to be guardians, particularly in situations where these children are coming with money and property. It can become a battle. At that point, the court will appoint a temporary guardian while the proceedings are taking place to see who will take care of the children.
These court battles can get very ugly. You’re looking at children who have just lost their mom and their dad, and now they’re having to be interviewed by a judge, potentially a guardian, social workers, and lawyers. There’s uncertainty as to where these children are going to live, where they belong, who is going to be taking care of them. It is hard on these children who are already grieving both their parents.
It’s not a process that anybody wants to see happening. It can take a long time to sort this all out, often extending a year or more until the court proceedings are finished. Even then, the Court needs to stay involved and proceedings may need to be re-opened if issues arise, or someone challenges the actions of the Guardian.
Nominating a guardian through a will is not full proof, but what it does is to express your wishes to the probate court and to your family as to whom you want that guardian to be.
In such a situation, the intent of the parents will be given a good deal of consideration. This can help eliminate a lot of these court battles, both because the probate judge then knows who the parents wanted to care for their children.
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