PROTECTING YOUR YOUNG CHILD
You can plan in your will for both your child’s physical care and financial well-being, if you pass away while your child is still young.
Your Child’s Physical Care
In your will you will name the person who will be responsible for raising your child if both you and your spouse die before your child is 18 years of age. This person is called your child’s “guardian of the person.” Being a guardian is a weighty responsibility. To properly select a guardian, you need to think about who shares your values and would do the best job bringing up your child the way you would like to have it done. Clients usually consider their parents first, depending on how young and fit their parents may be. Then they often think about whether any of their siblings might make a good substitute parent for their child. As you consider these possibilities, if no candidates surface, you will then need to consider if you have any friends who would be willing and able. It is a good idea to name your first choice and then name at least one alternate choice, in case your first choice cannot be the guardian. Of course, once you make your selection, you need to get the permission of whoever you would like to name as the guardian of your children. Often friends agree to be the nominated guardian for each other’s children. Another thing you need to plan for as a parent of a young child is what will happen if you become incapacitated and can no longer think and talk for yourself. The question is who will give instructions to your child’s doctor. Your own health care power of attorney gives your attorney-in-fact the authority to make medical decisions for you, but you also have the option of naming someone who will make decisions for your minor child.
Your Child’s Financial Care
Even if you do not have a will and you and your spouse both die, all your assets will go to your child. However, if you have not planned ahead, someone will have to bring a lawsuit to petition to be appointed the guardian of your child’s estate. This is because a minor cannot own assets. If you do not take care of this in your Will, the guardian of your child’s estate will probably be a self-selected family member, possibly not the family member you would choose. Whoever the guardian of the estate is they will have to get a bond, they will have to file an inventory of assets with the court and they will have to get court approval for everything the guardian does on behalf of the child. This is an expensive process because it involves so much court supervision. But things go from bad to worse since the guardianship only lasts until your child is 18 years of age. You do not need too wild an imagination to think about all the mischief and trouble an 18-year old can get into if he suddenly receives a large inheritance. You can avoid the need for a guardian of the estate by creating a trust in your will. The trust will hold your child’s inheritance, if you die before you want him to inherit. Your child’s inheritance can stay in trust for however long you feel is appropriate. Typically, when I am helping clients, we start distribution of principal from the trust at around 25 years of age, figuring that until then the trustee will be applying the funds to pay for the child’s education. Often, we structure the trust so the child gets half of the trust principal at 25 years of age. We anticipate the child may make mistakes in investing or spending it, but will learn from those mistakes. The child can then receive the second half at, say, 30 years of age and hopefully have a better understanding of what he needs to do to preserve the rest of his inheritance.
Selecting Your Child’s Trustee
While the trustee is in charge of the trust, the trustee will make distributions for the benefit of your child, and exercise the trustee’s good sense to determine your child’s needs. The trust does not have to be court supervised and thus a trust is not nearly as expensive as a guardianship of the estate for your child. You do need to think through who would make a good trustee. If there are sufficient assets I strongly urge my clients to use a bank trust department rather than a family member as trustee. This is because being a trustee is a lot of work. The trustee has to comply with the Trust Act’s notice requirements. A trustee has to keep accurate records of assets and expenditures. The trustee has to pay bills for the child and file a tax return for the trust. The trustee will be personally liable if the trustee does not invest the trust assets in a fiducially sound manner. One reason many of my clients think first of a family member, when they are pondering who should be trustee is they want the “personal touch” – a family member will bring to the situation. That is a valid concern, but one way to obtain the professionalism of a trust department and still keep family involved is to give a trusted family member the ability to change the bank trustee if your family member does not like what the trust department is doing, for any reason. Also, you can require the bank trustee to consult with your family member about decisions on how the trust money should be used to benefit your child. In this way, you get the professional skill of the bank trust department and the “personal touch” of having a family member or friend being in control of the trustee.
It is easy to let your will and estate planning fall to the bottom of your “to do” list. However, if you and your spouse die while your children are still young, the terribleness of that situation is multiplied if you have not planned ahead. If instead, you put good planning in place, you will prevent financial upheaval being added to the pain of such a potentially tragic, emotional time in your child’s life. Elizabeth A. Perry, a member of the National Academy of Elder Law Attorneys, has been helping Clark County residents with their estate planning needs for over 20 years. Her practice emphasizes wills, trusts, probate and Medicaid planning. You are invited to call her to schedule an appointment or sign up for a class at (360) 816-2485. ©Liz Perry 2014
(The above should not be construed as specific legal advice and is intended for general information purposes only)