Personal Guardian. If something happens to you, you can name a guardian for your child in a Will. A guardian is the individual who makes decisions for your child such as what school and church to attend, who cares for the child, where the child lives. Typically the personal guardian raises your child in your absence. If you do not have a Will or fail to name a personal guardian in your Will, then a Court has no guidance as to who it should be. It is not hard to imagine that the choice a court might would make you roll over in your grave. Why leave it to chance?
Financial Guardian. If your child is under 18, then the child is legally unable to manage their own property. If the child inherits something, then the child must have a financial guardian appointed by a court to manage their inheritance. The financial guardian has to ask the Court’s permission to access trust property and must have an attorney. In other words, it is expensive and avoidable.
If you do not have a Will or if you have named your child as a beneficiary of a life insurance policy, IRA or similar account, then if something happens to you, you have guaranteed a probate guardianship until your child reaches 18 (and sometimes 25).
Recall that if you do not have a Will and if you are married, your spouse and child will share in your estate. Sometimes it is your surviving spouse (having just lost you) that has to go to court to become the financial guardian and seek the court’s permission to spend the child’s money.
Yes. That’s right. Your spouse has to go to court and ask the court’s permission. Although you (and your spouse, if you are married) are the child’s natural guardian for purposes of making personal decisions, you are NOT the child’s financial guardian unless and until appointed by a court.
Trustee. During your life you have the opportunity to avoid all of this mess. If you are married you should leave everything to your spouse if surviving or to a trust for your child if your spouse is not surviving. If you are unmarried you would leave your estate directly to the trust. You can select a Trustee by naming an individual (mom, dad, or a responsible sibling) or bank to take charge of your child’s finances if something were to happen to you and your spouse.
The trust can say whatever you want it to, but commonly the trust will provide for distributions to the personal guardian while your child is a minor and for your child to go to college.
I don’t have enough for a Will. Whats that? You don’t have enough to justify a Will? Well, I hate to tell you that you’re wrong, but—you’re wrong!
Every parent should have a Will if for no other reason than to name a personal guardian to step in and care for your child if something were to happen to you (and your spouse if you are married).
Also, I want to emphasize that even small estates can bring significant (or at least disproportionate) legal fees on the back-end (think of the 18-25 year guardianship). Things like Improper beneficiary designations (naming a child under 18), asset titles and other things can cause unnecessary legal fees—fees which could have been eliminated altogether with planning. If you did not have a lot to begin with your child has even less now to get them to adulthood. . .
If you have a small or simple estate, then a simple estate plan is appropriate for you (which comes with a correspondingly reasonable legal fee!).
Suze Orman Will and Trust Kit is calling your name! Don’t do it! Avoid the temptation to do-it-yourself. There is a chance that you could get it right, but there is another chance that (frankly) you could screw it up.
You save money if you get it right. Your family pays if you screw it up. Guess who has two thumbs and gets to fix it. This guy. The whole goal was to avoid unnecessary legal fees, right?
An estate planning attorney can ensure that things will go smoothly if something were to happen to you and let you rest easy that you have protected your family.
An estate planning attorney will prepare other documents for you including powers of attorney and living wills.
Most importantly, the estate planning attorney will review your assets with you, tell you how the best way for you to own them, how to name beneficiary designations and the like.
All of these things may sound simple, but a professional can help you avoid making some “grave” mistakes.
Don’t do it for yourself. Do it for your family.