Estate Planning & Guardianship for Your Children

July 28, 2020 by Hillary Schulte

If something happened to you and your partner at the same time, who would be guardian to your children? Do you have a plan? Are your assets protected? Such big questions and ones that many don’t talk about, but should! My husband and I recently went through the process and would like to share our reasoning why we did an estate plan and what we learned along the way.

As a parent, the biggest loose end that you can leave behind is who should be guardian to your children. Sure, no one  likes to think about death and what would happen if we die while our children are minors. But, in a rare chance, it can happen. Without a will, assets would go through probate. Eventually your closest family would receive the assets. But probate takes time, sometimes decades.

If you have children, it is also important to leave a road map and instructions for your children. Here is why. All of your hard work and accomplishments could potentially be tied up and a chunk of it lost in probate. Without a will or a trust, your family would have a spiderweb of challenges on top of handling the usual details surrounding death. You may have planned and thought you had someone to take guardianship in this scenario, but without a trust and after you are gone, courts decide how things are handled.

While you might still agree that this is ok, the question of guardianship of your children could cause a battle within your family as to who “should” and who “could” take guardianship. Definitely not a situation that any parent would want to put their child or cgildren in. 

What is an estate plan? Estate plans can be as simple or detailed as they are based on what you choose what to include in the plan. Most estate plans include a will and a trust. And, if you have either adopted or biological children, will include directions for guardianship. They also include any children not yet born, so when you decide to have more children, they will automatically be included in the estate plan.

Is it ever too early in life to create an estate plan? No way! You can always modify or adjust your plan over time, as things change and develop through your life. If you and your partner die without a will, your children would go to your closest living relative. That may seem simple, especially if you like your closest relatives! But think harder and dive deeper in.

You and your partner die at the same time, that makes it tricky as to who the closest relative is on which side. Furthermore, without a will, it takes longer, more paperwork, more resources to figure out who your children should live with. Additionally, it leaves those surviving not knowing what you planned for, what your wishes were, who you would rather have raise your children. You can’t assume that your best friend would obtain guardianship, or God Parents, or your sister or brother. To top it off, what if there is a “battle” over who should have guardianship and your child or children get caught in the middle? Easy solution: get an estate plan done! 

For many years I have had getting a trust plan done on the back burner. It was on the back burner for so long because I did not have children, nor did I own property. But even at that it is still important to have one. At one point, I purchased a home and instead of the trust being on the back burner it moved up slightly in my priorities but was never done. Mostly because after I purchased my home the market dropped significantly and my thought was I didn’t want to burden somebody with a loss. But even at that, it was still a good idea to get it done and I didn’t do it.

Fast forward to today and I have a child. I don’t want to leave “unknowns” behind and force my family to guess of how I or my husband would have “wanted” things handled. Having a child was the biggest inspiration to get an estate plan done. 

You might have seen my previous blog post titled “The Sandwich Generation”. My mom did not have minor children when she passed, but she did have a detailed estate plan completed. In fact, in her forties she often talked about creating her will and trust “just in case”. I am so thankful that she completed the task as so many people do not, or put it off until much later in life.

My mom inspired me to do the same and create our own family will, trust and estate plan. I can’t imagine leaving my family with managing a loss and also trying to figure out a plan while guessing what I or we would have wanted after the fact. I also can’t imagine making it more traumatizing for my child at the same time. 

What I learned about estate plans while going through the process:

• Set up a trust bank account. If your children are minors, transferring money directly to them is complicated. A trust will ease the process and can hold the inheritance until children become of a proper age (usually 18, 21 or 25).
• Guardianship for minors. Be sure to designate someone, and a backup or two. 
• Guardians who are married. If you name someone as a guardian, your backup guardian could be that person’s spouse. Or not. For example, you name your sister to be a guardian, but if she were to pass or divorce, you would not necessarily want her husband to be guardian. You would name your sister only. If you want either your sister or her husband to be a guardian, then you would list your sister, then her husband next, and so on. Also ask yourself, if your named guardians were to get a divorce or die, would you still want either one as a guardian independently? Tough questions!
• Children’s bank accounts. If you can, set both parents up as joint account holders on your child’s bank account. Your child should be primary, and then you and your partner joint on the account too. 
• Cost. There is no doubt that cost is a barrier to complete an estate plan. A detailed estate plan usually costs around $3,000 or less. Think about it as “paying it forward”, to yourself. The cost to put your plan together now could save your family several thousand of YOUR MONEY down the road. Not to mention the headache and challenges without one.

There are many milestones in life that justify creating an estate plan. Buying a home, getting married, owning assets and having children are all big ones. Whether you have a large detailed plan to put together, or a  small and simple one, one reason that might encourage you is the simple fact that you want to leave a road map of your wishes behind so others know what you wanted. What ever the reason is, it never hurts to plan ahead and be prepared. 

For a list of trust attorneys in your area, search online for “trust attorneys”, “family planning attorneys” or “estate planning attorneys”.