Among the day-to-day questions swirling in every new parent’s head often lurks the question, “Who will care for my kids if something happens to me?” Signing essential documents answers that question and provides peace of mind to caretakers. Here are some ideas on how to legally protect yourself and your family.
A will is a legal document that dictates how you want your assets distributed after your death. It also and nominates the individuals who will serve as the guardians of your children and the trustee of any money for the children’s benefit. You should look at your will every two to three years, or more frequently when you or your appointed fiduciary experience major life changes.
Since a minor cannot directly own assets, a trust is set up. Trusts are separate legal entities that hold the assets for the beneficiaries. You can specify in your will what the trust can and cannot be used for and at what age your child can gain access to funds. For example, it determines if the money can be used for college and under what conditions. You can nominate one or more co-trustees and alternates, including friends, family, lawyers, banks or corporate trustees. The terms of the trust can be found in the will.
You may want to consider establishing a living trust for your children. It provides you with greater control over how and when money is distributed during your lifetime. Additionally, you can contribute annual exclusion gifts to a trust that are not subject to federal gift tax. This is an easy and effective way to reduce your own estate while gifting to your children.
Parents should nominate a guardian and an alternate guardian for their minor children in the will. Although you can appoint a family member or a friend, the court has the ultimate power to approve the individual as fit to serve. If the designation of a guardian in a will doesn’t exist, or if there is no will at all, a court chooses a guardian.
Although guardianship often prompts parents to start thinking about estate planning, it is also frequently the biggest stumbling block. Many couples disagree on who to choose because there are many factors to consider, such as the proposed guardian’s existing relationship with your child, his or her willingness to accept the responsibility, and the existing family and living situation of the potential guardian. The proposed guardian may or may not be the same person in charge of any money left to your minor children.
Keep in mind that you may always change your will and the person you nominate for your toddler’s legal caretaker may not be the same person you want when your kid’s a teenager. Choose at least one or more alternate guardians in the event that the person you select is unable or unavailable to act as guardian when needed.
Parents should also have a standby guardian and medical authorization form. This is especially important for same-sex spouses and partners. Same-sex parents should also do a second-parent adoption to protect the legal rights of the non-biological parent in the event of death of the biological parent or divorce.
In addition to a will, everyone should have a healthcare proxy, which appoints someone to make medical decisions for you if you cannot communicate; a power of attorney, which appoints someone to handle financial matters on your behalf; and, if desired, a living will, which states your intent for life-sustaining treatment should you suffer from an incurable condition in the future.
As with all legal matters, consult an attorney to make sure the documents meet your objectives and needs. Without the benefit of legal insight, you may be making mistakes that undermine your true intentions.