Sometimes the law can be confusing, but it doesn't have to be. We've compiled some Frequently Asked Questions related to estate planning and families to help you as you navigate your estate planning needs. Don't see your question listed? Please feel free to contact us with your question using our contact form.
Estate Planning & Families
What is a guardian?
There are two kinds of guardians:
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- Guardians appointed to care for a minor child when the child's parent is unable to do so
- Guardians (or conservators) appointed for the care of an incapacitated adult who can no longer make his or her own decisions
Comprehensive estate planning addresses both types of guardians, so that you and your family are fully protected.
A guardianship for an incapacitated adult can be avoided by adding proper powers of attorney, and explicit directions for them, to your estate plan. You should always name guardians for minor children, although a court will be involved in the process of appointing a guardian in order to ensure the child's best interests are cared for. By naming a guardian in your estate plan, you can let the court know who you believe will best be able to care for your child in your absence.
How do I name guardians for my children?
A parent's choice for guardian(s) of their minor children will typically be named in a will. If you do not appoint guardians in your will, the court will decide who raises your children. For parents of minor children, this is likely the most important estate planning decision you'll ever make.
Even though it's hard, and no one can raise your children as well as you can, proceed by selecting the guardians you think will best handle the responsibility. Do not delay estate planning because it is a difficult decision. Your inaction puts your children at risk. In addition, be sure to also name back-up guardians in case your first choice is unable to serve.
What if the guardians I name for my children can't serve when the time comes?
In your will you can make designations for contingent guardians. It's important that you name contingent guardians in your will in case your primary guardians are unable or unwilling to serve if the time comes. Life does indeed change, so be sure to also indicate who gets the kids if guardians divorce. Check in with the people you'd like to name to be sure they're willing and able to serve.
If the person that would be a great guardian is not good with money, can I still select them as guardian?
The people you would like to care for your children day-to-day may or may not be the best fit to also manage the finances. Fortunately, with proper planning, you may “split up” the roles: one person manages the money (the successor trustee) while another raises the children (the guardian). Perhaps the same people will be appropriate for both roles, but sometimes naming different people is the best option since the responsibilities require different skill sets. The good news? Your plan can be tailored to your family's unique circumstances and needs.
I am remarried and have my home, bank accounts, and cars in joint tenancy with my new spouse – why do I need a will or trust?
Joint tenancy does avoid probate and is often better than no planning. If you and your spouse were to die at the same time, however, then the joint tenancy is “broken” and your respective halves would have to go through probate. Additionally, if your new spouse survives you, then he or she owns all of the property that was jointly owned. Even if the two of you agreed that your children from a prior marriage should be supported or left an inheritance, your new spouse owns the property and can do whatever he or she wants with the property. This could unintentionally disinherit your children from a prior marriage.
If my spouse and children from my first marriage get along well with my current spouse, why do I need to consider estate planning?
They may be getting along well now, but it's difficult to anticipate what will happen after your death. Relationships can unexpectedly become contentious for many reasons. Estate planning puts you in charge and allows you to make sure everyone who is important to you – your new spouse and your children from a prior marriage – understands your wishes. Having a plan in place greatly reduces the risk of conflict and sets your family up to be cared for in the way you would like.
How do I balance the interests of my children from a previous marriage and my current spouse?
Only you can decide how you want to direct your assets upon your death, but once you do decide we can help you set up an estate plan that protects and provides for whomever you'd like – often that's children and, sometimes, a second or third spouse. Your estate plan, likely including trusts, will be carefully crafted to balance the interests of your children as well as your spouse. Without proper planning, parents may accidentally disinherit their children and cause havoc (and expensive lawsuits) in blended families. Proper planning, however, allows you to address everyone's needs in an equitable way that reduces the risk of expensive conflict.
My spouse just died. What estate planning concerns do I need to address?
You and your spouse probably owned some, if not all, of your accounts and property jointly. This may have been because you acquired the money and property during your marriage or because by owning the accounts or property jointly with rights of survivorship, you could avoid the probate process at the death of the first spouse. While you were able to avoid probate at the death of your spouse, you now own the accounts and property individually, and they will now be subject to probate at your death if you do not do any further estate planning. If avoiding probate is a priority for you, we can meet to discuss the various options available to you.
You will also want to review the beneficiary designations on your life insurance and retirement accounts. Most married individuals automatically list their spouse as the beneficiary because the intent is for the money to be used to continue the spouse's current lifestyle. When considering other beneficiaries, the decision can be a little more complicated, which is why people sometimes avoid listing a contingent (backup) beneficiary. However, now that your spouse has passed away, you will need to confirm who is listed as the primary beneficiary and make sure that a contingent beneficiary is listed. We can help you walk through your options for leaving these accounts to other individuals and advise as to how they should be left.
Lastly, review your selections for your trusted decision-makers. Because of the close relationship you shared with your spouse, you likely named your spouse to serve in one or all of the following roles:
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- personal representative under your Last Will and Testament
- co-trustee or successor trustee of your RLT
- agent under your Financial Power of Attorney
- agent under your Health Care Power of Attorney
Because your spouse is now deceased, you should review these documents and your selections to ensure that you have named a backup. You may also want to consider naming a backup for your backup.
If you have minor children, you will also need to consider who should serve as your children's guardian if you are unable to care for them. If your spouse was the other legal parent, it is incredibly important that you name a guardian because your automatic backup is no longer alive.
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Read More:
What is Estate Planning? An Estate Planning Overview
Estate Planning Basics & Benefits
Wills Versus Trusts: How do I know What I Need?
