You need an estate plan no matter what stage of life you’re in. And if you have minor children, then its especially important.
An estate plan will protect your children if the unthinkable happens.
If you don’t have an estate plan in place, or you have one but it hasn’t been updated in a while, read on to find out why they’re so important for families with minor children, and the components included in an estate plan for families such as yours.
YOU NEED AN ESTATE PLAN
Estate planning is probably something that you don’t think about very often, it at all.
Your kids are still at home and you’re building a life. Retirement is in the distant future.
So, you think that you don’t need an estate plan at this stage of your life.
And even if you do think about it, you have limited time to engage in anything but the immediate needs of everyday life.
You have a career and family responsibilities, soccer practice, piano lessons, and little league. There are vacations and birthday parties to plan. Plus, the house isn’t going to clean itself, and the yard needs work too.
Who has time for estate planning with all of this going on?
It may seem like you don’t have time, but you have to make time.
There will always be too much to do, and too little time in which to do it. The timing will never be perfect.
But I promise you, once you get this work done, it will be worth it.
And you’ll probably realize that it wasn’t as difficult or time consuming as you thought.
The most important thing is that you’ll have peace of mind knowing that you’ve done something important for yourself and your family, and that they, and you, will be protected.
Still Not Convinced? Ask Yourself These Questions
1. What would happen to your family if you or your spouse, or both of you, suddenly aren’t there anymore?
2. Do you have the tools in place to protect your children?
3. Do you have life insurance?
4. Are the beneficiary designations on your life insurance and retirement accounts up to date?
5. What do you want to happen if you are suddenly incapacitated?
6. Who has access to your online passwords?
Pretty daunting, right? And these are just a few of the questions that can arise when you least expect it.
Everyone needs an estate plan. Whether you’re 30 or 60, single or married, have or don’t have children.
And it’s even more important if you have minor children, in which case your plan should include documents which name temporary and permanent guardians for your kids in case something were to happen to you.
So, hopefully, you’re convinced that you need an estate plan. But what is an estate plan, and what should it include?
WHAT IS AN ESTATE PLAN?
An estate plan ensures that your assets (your estate) goes to those who you want it to go to, in the way you want it to.
But it not only disposes of your assets after you die, it protects you if you become sick or incapacitated, and names who will serve in important roles to ensure that your interests are protected.
It also states your end of life wishes.
And, most importantly for parents of minor children, it names temporary and permanent guardians for your children if something happens to you, and ensures that they will not receive an inheritance directly (more on these issues soon).
Components of An Effective Estate Plan
There are several core documents of estate plans for families with minor children.
If you don’t have an estate plan, then you need to execute one, and make sure that all of these documents are included.
And if you have an estate plan that doesn’t include all of these documents, then its imperative that you revisit your plan.
- Guardianships for Minor Children
The most important parts of an estate plan for families with minor children are temporary and permanent guardianship documents for your kids.
Without these documents, an accident could result in the state taking temporary custody of your children, and a court will decide who will raise your children permanently if you don’t recover.
Guardianship documents are not complicated, but a lot of thought should go into who you select to serve as both temporary and permanent guardians of your children.
Temporary guardians are individuals or couples who you want to take immediate custody of your children if you are unable to do so.
For example, you and your spouse plan a long overdue date night. You hire a babysitter and feel comfortable that he or she will do a great job. Unfortunately, you are in a car accident on your way home and can’t get back to your kids. Obviously, the babysitter can’t keep custody of your children and unless there is family close by, the Florida Department of Children and Families (“DCF”) will have to step in and take custody of them until family can be reached.
This is where setting up temporary guardianship documents is vital.
In the temporary guardianship document, you name an individual or couple to take temporary custody of your kids if something happens to you.
You give this document to the temporary guardian.
You will also leave instructions with your babysitter that, if something happens to you and your spouse, he or she should contact the temporary guardian to take custody of your children so that DCF doesn’t.
The temporary guardians then take custody of your children until you are able to.
Permanent guardians are just what they sound like – they take custody of your children if you are unable to care for them anymore, either because of incapacity or death.
So, how do you choose who will fill these roles?
The first step is to create a list of both temporary and permanent guardians. Once you and your spouse have created these lists, you should take these factors into consideration:
- Unless you have no other choice, it isn’t a good idea to send your kids to live with someone they don’t know or have never met. It is always better to select people who your children know and feel comfortable around. This is true for both temporary and permanent guardians.
- It can be difficult to uproot your children and have them move to a different part of the country. Again, it may be necessary if you don’t have anyone else to serve as guardian, but it is best for children to remain in the area where they have lived and, again, that they know who you have selected. In addition, for temporary guardians, you want to choose people who are close enough to your home so they can be there quickly to take custody of your kids.
- You should choose guardians who share your values, including your religious beliefs, and your views on education and discipline. This isn’t as important for temporary guardians. The most important consideration for temporary guardians is that you trust them to take care of your children until you are able to do so, and that they can get your children quickly.
- Although you may want to select your own parents as guardians for your children, their age or overall health may not make them the best choice.
- If your guardian of choice already has three kids, would you want to add your kids into the mix? What if you are selecting someone who hasn’t started a family yet?
- You may be surprised to find out that some of your top choices may not want serve as guardians. So, it’s important to have a conversation with the potential guardians to make sure that they are willing to take on the responsibility.
- One thing you should not consider is the financial means of the potential guardians. You need to make sure that you provide sufficient financial support, through life insurance or other planning, to ensure that no one who is otherwise qualified to serve as a guardian is disqualified on the basis of financial means.
2. Wills and Trusts
A Trust goes further though – it also allows a successor trustee to step into your shoes to take care of your assets if you are incapacitated.
Any comprehensive estate plan will include a Will or Trust as the primary component of the plan. So, we describe estate plans as either a Will-based plan or a Trust-based plan.
For families with minor children, the type of plan you select has some important implications.
A Will-based plan is an estate plan that does not include a Revocable Living Trust to hold title to your assets.
A Trust-based plan is an estate plan that does include a Revocable Living Trust to hold title to your assets during your lifetime and to provide for ease of transfer of those assets in the event of your incapacity or death.
There are some practical differences between a Will-based and a Trust-based estate plan.
With a Will-based plan, your estate will have to go through probate. Your Will will be filed with the court and the court will then distribute your property to your heirs.
I have some clients who want to avoid probate at all costs because it can be time-consuming and expensive depending on how complicated your estate is.
I have other clients who are not concerned about probate, so a Will-based plan works perfectly for them.
With a Trust-based plan, your family will likely avoid probate, although if there are creditors, it may be necessary to go to court to get those claims resolved.
A Trust-based plan may make sense if you own a business because if you become incapacitated, your successor trustee can step into your shoes and run your business (as long as it is funded into the Trust).
A Revocable Living Trust can be changed prior to your death as long as you have the mental capacity (are not incapacitated) to do so.
Since it can be changed, Revocable Living Trusts do not provide creditor protection for your assets.
Therefore, a Trust-based plan, by itself, will not provide you with creditor protection. But it could provide creditor protection to your heirs if they receive their inheritances from you through irrevocable trusts.
A discussion of irrevocable trusts is beyond the scope of this article, but we’ll be posting information on these types of trusts in the future.
In addition to the benefit of your property passing outside of probate upon your death, if you become incapacitated, the successor trustee you’ve named in your Revocable Living Trust can step into your shoes and take care of your assets. This will avoid the necessity of getting a court order to appoint a person to do that for you.
Finally, when you have a Revocable Living Trust in place, there is a bit more work for you to do upfront because you need to make sure that all of your assets are owned in the Trust throughout your lifetime.
Your estate planning lawyer will assist you in ensuring that all of your assets are properly titled in the name of your Revocable Living Trust.
With a Will, there is more work on the back end for your family dealing with probate, attorneys and the court.
3. Durable Powers of Attorney
Another essential component of an estate plan is a Durable Power of Attorney.
This is a powerful document and should be approached cautiously.
A Durable Power of Attorney is executed by an individual (the Principal) to give another individual (the Agent) the power to transact business on his or her behalf.
For example, the Agent in a Durable Power of Attorney has the authority to pay bills on behalf of the Principal.
The Agent can also make deposits to and withdrawals from the Principal’s bank account. Of course, any such transactions must be for the benefit of the Principal.
Indeed, depending on how broad the powers are, the Agent may be able to, among other powers, sell property, receive property, withdraw money, create trusts and other estate planning documents, and sell securities.
Moreover, in Florida, Durable Powers of Attorney are effective on the date they are executed, not only after you become incapacitated. Therefore, if you execute one, your Agent can conduct business on your behalf immediately.
Because these powerful documents become effective immediately, you must be careful with whom you appoint to be your Agent.
Married couples generally serve as each other’s Agents. But, you may also want to have someone named as a backup in case your initial Agent dies, becomes incapacitated, or decides that they no longer want to serve as your Agent. If you name a backup, its important that you name someone whom you trust implicitly. Your lawyer can help you work through this decision to help you choose the best possible option.
4. Health Care Documents
Any complete estate plan should contain the next three documents, all of which will help you and your family deal with an illness and end of life decisions for you. Again, these are critical documents and much thought should go into who will fill these roles for you.
The Health Insurance Portability and Accountability Act of 1996 protects individuals’ private medical information.
In order for your medical information to be shared with others, a valid HIPAA release is necessary.
And this release is needed even for spouses, who are not automatically granted the right to view all of their spouse’s medical information.
Moreover, as long as your child is still a minor (under 18 years of age), you are entitled to receive all of their medical information.
However, once they reach 18 years of age, you are not. This is a surprise to most people, especially if their children are still in high school or attending college or living at home when they turn 18.
So, when your minor children turn 18, its important that they execute a HIPAA Release so you can receive their medical information.
Designation of Health Care Surrogate
A Designation of Health Care Surrogate names individuals who can make medical decisions on your behalf if you are unable to do so.
For example, if you are in a car accident and not able to communicate, the persons you designate in this document can provide your health care providers with authority to take action on your behalf (surgery, blood transfusions, etc.).
When used in conjunction with a living will (see below), you can ensure that your wishes with regard to medical treatment will be carried out.
Again, for married couples, a spouse is the obvious choice as the first surrogate. After the spouse, you should someone who trust implicitly and who you want to receive your medical information.
A Living Will allows you to control your medical treatment if you suffer an illness or injury that results in a terminal or end stage condition, or a persistent vegetative state.
You can direct that your medical care providers take no measures to prolong your life, and give specific instructions about what your care should be.
This is an important document if you are concerned about measures being taken to artificially prolong your life when you have no meaningful chance of recovery.
If you have any questions about estate planning, and why its so important for families with minor children, don’t hesitate to reach out.
Also, feel free to explore the other resources on this site for more information about estate planning.
And if you are a business owner, you can find valuable information here as well.
The most important item on your to do list with regard to this planning is to get moving. You will be surprised at how fast it comes together.
And if you already have an estate plan, but are missing some of the key components identified in this article, or need to make revisions to your plan due to life changes, there is no time like the present. Do it now before its too late.
Remember, a well-designed and up-to-date plan will not only work when you need it, it will give you peace of mind that your family will be taken care of and your children will be protected.