Often young people believe they do not need estate planning because of their age or because they do not have a lot of assets. However, what young parents don’t realize is that estate planning is an essential element of planning for their children’s care in case both parents pass away while having children who are under 18 years of age.
Without the right plan, in case of an emergency where both parents die a child may become a ward of the state and end up in foster care if no family member or third party is willing to step in as a guardian. Even if there is a party willing to be appointed as a guardian, the process can be long and devastating for a child who is already grieving. Whereas, if a guardian is named in the parents’ will, even though the court must still approve the guardianship, it is a much quicker and easier process to complete, allowing the child to be surrounded by people that love and care about him, making the difficult time easier to handle.
Before preparing estate planning documents and naming a guardian, parents need to have a discussion with the potential guardian, in order to ensure that the person and his or her family are not only aware of being named as potential guardian, but also agree to take on the responsibility of raising the children, in case the necessity arises.
Custodial parents, who are separated from the other parent of the child also have numerous considerations to take into account. In most situations, if a custodial parent dies, the other parent will be appointed as a guardian of the minor. However, if there are issues that can be detrimental to the care of the child, such as mental problems, alcohol or drug abuse, the custodial parent should choose another guardian. He or she can also write a letter to the judge and keep it with the will, explaining why another guardian was chosen, and explain that it is not simply because the custodial parent does not like the other parent.
Estate planning may include documents such as a will, health care power of attorney, durable power of attorney, a living will, trust and transfer on death affidavit. The need for each family or individual depends on the goals and purpose the client has in mind. That is why it is extremely important to speak with an attorney who can advise her clients what documents are required and which ones might not be necessary at the time.
It is crucial to remember that estate planning documents should be looked at and reviewed at least every 3 years or upon any big events in life such as a marriage, child being born, or a beneficiary or guardian in already existing plan passing away. This ensures that the documents reflect the clients’ true wishes and vision.
For more information on children’s guardianship, including the differences between a guardianship and a guardian of an estate, please see my article “Guardianship of a Child vs. Guardian of the Estate”.
To discuss what is best for you and your family, please call/text 216-586-4246 to schedule an appointment.