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Parents of minor children face many tough questions. One question that many parents don’t want to ask themselves is, “Who will care for my children should I pass away or become incapacitated?” This is a difficult issue that many struggle with.
Parents should nominate a Guardian for their minor children in their estate planning documents. Adding Guardians to your estate planning documents is the “easy” part. Choosing a Guardian is a more difficult matter. My best advice: look for a good choice, not necessarily the perfect choice. The perfect choice does not exist. You are the perfect choice, and you are really looking for a “runner up”.
How should you approach choosing a Guardian? There is no magic answer and there are many considerations. Start with a long list of possible choices. Make a list of ALL the people you think could be good Guardians. Don’t limit yourself. Think about siblings, parents, and other extended family members. Friends can make terrific Guardians as well.
When selecting a Guardian to raise your kids, I recommend that parents focus on “the love.” Parents should consider whether each couple or person on your list would truly love your children if appointed to be their Guardian. Ask yourself: do these people have the capacity to love my children like I do? After all, you want the Guardians to treat your children as you would. Consider their values and philosophies. The right people most likely will share your values and philosophies on life, child rearing, religion and education. Trust your instincts.
Many parents are very concerned with the financial situation of potential Guardians. My advice is simple: don’t worry too much about the finances or the size of someone’s house. Don’t eliminate a person because you think they don’t have a high enough net worth. It’s your job to financially plan for your children. You can provide funds for your children through proper estate planning. Many parents utilize life insurance to create an instant estate to care for the family that they leave behind.
After disregarding the financial issues, parents should consider some of the practical factors associated with Guardianship. How would raising your children fit into the Guardian’s lifestyle? Do they have the necessary health and stamina to raise your kids? Do the potential Guardians have other children? If so, do they get along with your children? I could go on (and on) but I think you get the point. There are many important considerations when choosing Guardians. Look for love first and then address the practical factors of whether or not a person could handle the job of a lifetime.
Like this:
I live in an old house, a very old house. Built in 1773, the Evelyn Blakeslee house has survived floods, hurricanes, wars and even disco. Imagine what kind of damage a 2 year-old boy and an ill placed ladder can do to this old house. Early Saturday morning, there was a near simultaneous crash and smash as my little trouble-maker tipped the ladder into a window that was original to the house. That’s right, my little guy did what time and wars and mother nature (and disco) could not do- he smashed the heck out of that window. It’s not like you can just go down to the hardware store and order up a “new” 237 year old window- I was going to have to fix this one myself.
To fix a broken pane in an antique window is quite a process. First, remove the window sash from frame and then remove the broken glass, debris and ancient glazing from the sash and muntin bar (windowpane divider). Next, apply boiled linseed oil to dividers and wait. While you’re waiting for the linseed oil to dry, begin to cut new a piece of glass (from an old piece of antique glass-which presents its own challenges). After the glass is cut and is correctly sized apply a bead of glazing to the inside of the divider and place glass in. Then, secure glass with glazers points and then apply ½ inch thick “rope” of glazing to the front of the glass. Next, smooth out the glazing with a putty knife and wait and wait. At this point you may want to take a trip to the library and get a long book. After a few weeks the glazing should have skinned over, then and only then can you paint it with an oil based exterior paint and reinstall the window sash, unless it’s the beginning of summer and the window frame has swelled from the humidity (then wait until fall to re-install).
So what the heck does fixing an old window have to do with estate planning? In a lot a ways fixing that old window has everything to do with estate planning. I fixed the window because it was worth fixing. If it was not worth fixing-I would have purchased a new window. The same goes for estate plans. Often, I meet with clients who have had a trust written by another law firm. Unsatisfied with the trust for one reason or another, the clients hope I will be able to fix their trust. Sometimes, when I am reviewing the trust it becomes readily apparent that there is no simple fix. Many times it is impossible to simply fix the trust by adding an amendment or by removing the broken parts. Often, the trusts are just not worth fixing. It is never an easy conversation when I have to tell people that something that they spent a lot of money on needs so much work that “patching” it up is not an option. Sometimes, we needed to start over again from scratch and build a new trust.
Do you know if you estate planning documents are broken? Are they like that ancient window- are they worth fixing? If you’re in doubt about your documents (or your windows) seek out a professional who can evaluate whether or not your documents need to be repaired or totally rebuilt.
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Clients often ask me if they should discuss their estate plans with their adult or nearly adult children. There are both pros and cons with this issue. On balance, as long as your kids are not anxiously waiting for you to die, there are many benefits to discussing this topic with your children. Talking about your estate plan with your children can eliminate any surprises after you die. This helps to ensure family harmony long after you are gone.
Communication is the key. When speaking with your children, explain the who, what, when, where, how and WHY of your estate plans. This will make it easier for your children, as well as the planning professionals who may be left with the task of explaining what you were trying to accomplish through your estate plan after you are gone. Some children may feel slighted because they were not named as Executor or Trustee. However, there may be very good reasons for why that child was not named. Frequently, children will regard unequal treatment in an estate plan as a statement of their parents love or lack thereof. This, of course, is usually far from the truth. Sometimes parents wish to provide more for a child who needs more help, and less to children who are more successful. It is imperative that you communicate your reasoning with your children. If there is no communication, it is often left up to the imagination of the children.
For many people, preserving the family unit after you are gone is a major concern. There are things that you can do today, that will have an impact on the lives of your children long after you pass. We often invite our clients to bring their children in. It is always nice to meet the people who will benefit from the planning that we do. Children can be involved in the process by discussing Executor and Trustee selections with you. This gets them involved and makes them feel like their opinion has worth, which will reap dividends for many years to come. Your kids should know (or at least know how to contact) your life insurance representative, financial planners, accountants, and attorneys. Parents should try to introduce these professionals to their children. When they do meet, note how the advisors respond. Their response to your children will be a good indicator as to how helpful these advisors will be to your children in the future.
When I was a kid we used to get Mr. Yuk stickers at school. The idea behind the Mr. Yuk stickers was to bring them home and your parents would place the stickers on the dangerous stuff around the house a child could get into, with the hope that little Jimmy wouldn’t guzzle the paint thinner. I myself have never guzzled paint thinner or chugged Drano (paint chips- that’s a different story). On some level the Mr. Yuk stickers on worked, my parents never had to call poison control. I wish I had a Mr. Yuk Sticker to place on the foreheads of parents who want to hold property as joint tenants with their children. Let’s see, how can I put this? DON’T HOLD PROPERTY AS JOINT TENANTS WITH YOUR CHILDREN. Are we clear? This has been the source of numerous problems for my clients. Aside from the loss of a stepped up basis and gift tax issues (when you put your home into joint tenancy with your kids it is a taxable gift) transferring some or all of your interest in the house over to your children puts your house in jeopardy. Many people feel that by transferring there house or an interest therein protects the home, the effect of this transfer has quite the opposite effect. Your child (as the transferee) could get sued or divorced and this puts your house in serious jeopardy. If you transfer interests in your house to several children, you could easily double, triple or quadruple the liability on that piece of property. There are more effective mechanisms to limit the liability on the property and protect the property from lawsuits and Medicaid issues.
So I’ve got this kid. His name is Jeremy. He’s almost a year old and about as cute, funny, smart, (insert superlative here), as a kid could be. My wife and I have so many hopes, and dreams for him. We would do anything to protect him. We talk about his future, who he is and who he may become. Sometimes the lawyer in me comes out. I worry about the bad things that could happen. I worry about him becoming a Yankee fan or what would happen to him should my wife and I die. My wife says that he’s a Red Sox fan “at least until he can speak,” so I have put that worry out of my mind, at least for the next few months.
Naming a guardian for your minor child is a pretty heavy proposition. It probably is one of the most perplexing questions facing parents of minor children.
Parents often ask me how they should approach choosing a Guardian. Sorry…there is no magic answer. There are many issues to consider. First, parents should consider some of the practical factors associated with Guardianship. How would raising your children fit into the Guardian’s lifestyle? Do they have the necessary health and stamina to raise your kids? Do the potential Guardians have other children? If so, do they get along with your children? Do they have similar values and philosophies as you?
Beyond the practical issues I recommend parents focus on “the love.” Does your Guardian choice have the capacity to love my children like I do? After all, you want the Guardians to treat your children as you would. Don’t worry about finances or the size of someone’s house. Don’t eliminate a person because you think they don’t have a large enough net worth. You can provide funds for your children through proper estate planning.
Make a list of ALL the people you think could be good Guardians. Don’t limit yourself. Think about your siblings, parents, and other extended family members. Friends can make terrific Guardians as well. Start asking the above questions about the people on your list hopefully the good candidates will emerge.
My best advice would be to look for a good choice, not necessarily the perfect choice. There is no perfect choice. The perfect choice is an unattainable goal. You are the perfect choice. You are really looking for a “runner up” here.
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