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THIS ARTICLE IS PRESENTLY POSTED ON MOTHERING.COM.
Introduction
If you think that estate planning is only for people who are either rich or old, think again.
Everyone should give some thought to what will happen on their death, especially parents with young children. As a parent, making plans for your death is an important part of your new responsibilities. It may not be an especially pleasant task, but that doesn’t mean that you can just cross your fingers and hope that the worst won’t happen to you. Many new parents take out life insurance so that their children won’t be left with nothing should the unthinkable occur. This is a vital step in making provision for your family, but on its own it may not be enough. With a little further planning you can ensure that what you leave behind (whether life insurance payments or other assets) is dealt with in accordance with your wishes, and you can maximize the amount that actually passes to your loved ones.
It’s all about taking control, and exercising choices that are rightfully yours to make. We’re not talking here about setting up elaborate trusts. Every parent should take a few basic steps to ensure that enforceable instructions have been left to provide properly for their family’s future. They are relatively simple, and – if you go to the right attorney – relatively inexpensive. But they are crucial.
Guardians
One of the most important functions of estate planning for parents is to appoint a guardian for their children. If you do not do this, your children will be placed under the custody of the local judge, who will appoint someone to look after them. You should make that decision, not a judge who probably does not know you, and certainly does not know your children. You are best able to choose the right person for the job. If you fail to exercise that choice, however, you run the risk of the court appointing someone you might disapprove of. Is that a risk you can afford to take?
Intestacy: Your wishes vs the Government’s rules
If you take no steps to plan for your death, then you will die “intestate.” This means that, since you have not specified who will get your property on your death, the government will choose for you by applying its intestacy rules. This may give rise to some surprising, and possibly unwelcome, results.
For example, many people expect that on their death, all their property will pass to their spouse. However, under the Missouri intestacy rules (for example) if you are married with children then your spouse will in fact only be entitled to half of your assets. The remainder will go to your children – which, as we will see later, can pose its own problems. Or perhaps one of your children has special needs and will need more money than his siblings to survive after you’ve gone. Unless you take control of your estate planning and specify otherwise, each of your children will be treated equally.
You have worked hard to earn and save what you own. You should decide who will receive your estate on your death. To do that, you must at least execute a valid will.
Conservatorship Estates: Expensive and Time-Consuming
If you leave property directly to your children without proper planning, someone will have to be appointed by the court to look after it for them, because children under the age of majority cannot legally own property themselves. This is called a “conservatorship estate”, and will continue until the children reach the age of majority. Throughout the duration of a conservatorship estate, every material decision relating to your children’s welfare must be approved by the court. This means that the simplest decisions can become time-consuming and complex. Things can quickly get very expensive. As you might imagine, your children’s inheritance is unlikely to go as far as you would have hoped. But with proper estate planning, this expense can be avoided.
The Eighteenth Birthday Bonanza
As we mentioned above, without estate planning your children will be entitled to their whole inheritance (or what’s left of it) when they reach the age of majority. In our experience, however, sudden wealth and eighteen year-olds rarely go well together. Few have the maturity to resist temptation, and many are susceptible to unscrupulous swindlers. Left to his own devices, an eighteen year-old and his money will soon be parted. (We know. We were eighteen once.) But with the right planning you can delay the distribution of your assets until a later date, when your children will be more mature and more able to benefit wisely from your beques
Avoiding Unnecessary Costs
Of course, making sure that you pass on your assets with minimum cost is also important. There are many different costs associated with the passing of property on death. You may not be surprised to learn that doing nothing is the most inefficient way of going about things: you run the risk that a sizable portion of your estate may go to the government or (even worse) lawyers, rather than to those you love. With proper planning, some of these costs (such as probate fees) are completely avoidable. Others (such as federal estate tax) can be minimized. Without estate planning, though, you can be sure that your estate will bear the maximum costs possible. This, of course, will leave less for your family.
Health Matters
These days, estate planning is not just about your property; it’s also about you. You may wish to consider signing a healthcare directive, or “living will”, which specifies your wishes about life-prolonging treatment should you become severely ill. There are also other documents, such as durable powers of attorney, which can be used to give those you trust the power to look after you and your affairs while you cannot. Many state bar associations have these forms available to be downloaded for free. By executing these documents and clearly expressing your wishes, you may be saving your family from heartache and grief in the future.
Conclusion
In view of the above, all new parents should think about visiting an attorney to discuss their estate planning needs. If you do not have an attorney, take time to shop around and find someone you are comfortable with. Ask friends for recommendations. If possible, find one who does a lot of estate planning work. Many estate planning attorneys are willing to have an initial meeting with new clients to discuss their requirements without cost or obligation. Take advantage of this!
Once you have found an attorney you are comfortable with, there are many possible approaches which may be taken, depending upon your wishes and resources. A simple will may avoid some of the problems outlined above. However, a revocable lifetime trust will most likely be even better equipped to protect your assets and your family. Revocable trusts offer great flexibility and they allow you to pass your estate on to your loved ones without the expense and delay of the probate process. They also have many other advantages. You should ask your attorney if a revocable trust would be right for you. (It’s what we, as estate planning attorneys, often recommend to our clients.) Your attorney will be able to advise you what is best for you. He will be able to help you take control. The process need not be overly complex and expensive. And it should give you the peace of mind that you have provided for the people you care about most – your family.
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