When it comes to planning for the worst, families with children have more to worry about than just assets. They will need to make the proverbial arrangements for who will look after the children if both parents perish. This often involves difficult issues that relate to a topic that nobody wants to address. However, these plans must be made no matter what. Here are some considerations that families with children should think of when planning their estate.
The most obvious and pressing issue is the appointment of a guardian for the children, This will be the person who ultimately raises the children. This person should be selected with great care. The children will likely have emotional needs that will be difficult to meet so you will want to make sure that whoever is appointed is up to the task. If a guardian is not appointed, the court system will decide who will raise the child and someone who you may not have wanted could become your children’s guardian.
When you select the guardian, make sure that you discuss it with that person ahead of time. This will give you an idea as to how this person will raise your children when you cannot. To the extent that you are able, you should ensure that your children have as much continuity as possible if someone has to assume guardianship for them. The children will likely have experienced enough sadness and trauma so you should aim to keep them as close to their present environment as possible. You will also want to keep continuity in other areas such as education and belief system. As much as possible should be reduced to writing in your will to provide as much certainty as possible for the children.
In the same spirit, you should also consider appointing an emergency guardian for minor children. This will not be in your will, but you will do this in a living will or an advance directive. This type of guardianship lasts for the duration of the emergency. Once the situation is over, the emergency guardian’s job is over.
Considering the alternative, this is something that you will want to do on your own. The alternative is that the court will have to do this and that could create more uncertainty and difficulty for your children. Doing this yourself means that your wishes will be implemented and you will have some control over the situation even when you are incapacitated. Like the standard guardian, you should make sure to discuss this with the prospective emergency guardian beforehand.
When you have minor children, there are additional issues with selecting the trustee for the will. Your assets will likely be placed in a trust with the children as beneficiaries. One thing that people do not always think of is whether the trustee will be alive long enough to serve as trustee. The thought is that the assets will be held in trust for the children until they reach a certain age. If parents are selecting their parents, then that could be a concern. At the same time, you will want to make sure that you select a responsible trustee who will make decisions in the best interests of the children.
One possible option is selecting a corporate trustee who is guaranteed to be around to administer the trust. This will mean that you can set up a lifetime trust. This type of trust will help protect the assets during the children’s lives as they grow.
Serving as a trustee can be a difficult experience and can subject someone to a fair amount of contention. Not everyone wants to be a trustee. You do not want to have a situation where you have designated a trustee, but they are either incapable of carrying out their duties or decline to do so. With that in mind, you should also designate an alternate trustee so you are not left with a trust that has not trustee.
When you have an estate that contemplates a trust for minor children, it is vital to have a successor trustee. If the original trustee dies or becomes incapacitated, you will need someone to make decisions for the trust. You should consider having more than one alternate trustee to plan for all contingencies.
When you appoint a guardian and a trustee, you will be faced with a choice of whether to make it the same person. There are pros and cons to each alternative. There are benefits to having the guardian serve as the trustee. There is both continuity and consistency. The person who is closest to the children may be the one who is best-equipped to make the decisions for the trust.
At the same time, it may be the person who is closest to the situation who may be the least objective, Having a different person serving as trustee and guardian will mean that there is a system of checks and balances where one person does not have too much control. Many trust lawyers recommend that you take this route for precisely this reason. This can add some additional expertise and level headedness to the decision-making process. In addition, the guardian may likely have their hands full with their new responsibilities tending to the children and may be too burdened to deal with some of the financial decisions.
An estate planning lawyer who specializes in minor children can help you make these decisions. Since this is something that most people do not want to think about, they will be able to provide you with suggestions based on their years of experience. They can help you take an inventory of who is in your life and work through various scenarios and contingencies. There is nothing wrong with seeking help in this area given the importance of the decisions that you will make that can have many impacts after you are gone.