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Estate Planning Considerations for Parents with Minor Children
Would your children be okay if you were no longer around to care for them? This is a question that is often posed to me by online ads selling life insurance. While this is the last question that any parent of young children wants to consider (myself included), this is an issue that needs to be addressed.
Who would your children live with? Who would control the assets that you leave behind for them? Who will make healthcare decisions on their behalf? These are all questions that can be answered by ensuring that you have an estate plan tailored to your family’s particular situation. In creating your estate plan with young children in mind, the following documents should be considered.
Child Care Power of Attorney
While you are living, a Child Care Power of Attorney allows a trusted individual to care for your child in the event that you are temporarily unable to do so. A Child Care Power of Attorney designates certain individuals, whether a grandparent, aunt, uncle, or family friend, as a representative of the parent(s) to make decisions on your child’s behalf when you are not immediately available to do so.
For example, Mom and Dad go out of town for the weekend to celebrate their anniversary and the kiddos stay with Grandma and Grandpa. Now imagine – your kindergartener has become a bit of a daredevil and wants to show Grandma and Grandpa how far she can jump when she’s swinging on the playground. But this time, she’s not able to stick her landing. She throws out her arms to catch her fall and lands on her arm at the wrong angle. With a properly executed Child Care Power of Attorney, Grandma and Grandpa can work with your daughter’s healthcare provider and consent to the treatment of the broken bone in your absence.
Last Will and Testament
A Last Will and Testament is the document that directs where an individual’s assets will go when they die. However, for parents of minor children, the Will also allows you to name individuals that you trust to care for your children after your death. This individual is commonly referred to as the guardian. Generally, the child’s other natural or adoptive parent will be the guardian the minor children upon your death.
However, what happens if both parents have passed? Without a Will nominating a guardian of your minor child, the Court will decide who to grant guardianship of your children to. This will generally be based on who is most closely related to the child and will take into consideration the best interests of the child, but this is not always the same individual that you would have named yourself.
A guardian can be the person that has physical custody of the child, referred to as the guardian of the person. A guardian can also be the person that has control over the financial assets of the child, referred to as the guardian of the estate. The guardian of the person and guardian of the estate can be the same person, or you can appoint different individuals for each role. By nominating individuals in your Will, you can direct that a certain family member or friend be appointed guardian of the person – the person with whom your child will live with, who can make health care decisions, and handle the day-to-day matters related to your child, while directing that another person be appointed guardian of the estate to handle the finances on behalf of your child.
Revocable Trust
A Trust is another estate planning document that directs where your assets go after death. It is not uncommon for individuals to come into the office and say that they do not need a Trust because they do not have enough assets. This is a common misconception. The need for a Trust is not based on the assets that an individual possesses. Rather, a Trust allows you to control the assets after you have passed and allows for complex distributions – like the distribution of assets to a minor.
An individual under the age of eighteen is unable to directly inherit from an estate in Ohio. If a minor is a beneficiary of an estate, the Probate Court would require that a guardian of the estate be appointed to distribute the assets to on behalf of the minor. At this point, any distributions to the child would be overseen and governed by the Probate Court. By creating the Trust, you can keep your assets out of the Probate Court and to be administered by your Trustee based on the directions that you have provided.
Trust provisions can be tailored to your family’s specific needs. Your assets can be held in trust for the minor children which will allow them to benefit from the assets, while not distributing the assets to them outright. The trust funds can be used for their health care, education, and other basic living expenses. The balance of the Trust can be distributed to the child upon reaching the age of eighteen, or at a later age of your choosing.
Rather than the Probate Court overseeing the distributions of the assets to your children, you are able to appoint a family member, friend, or other trusted individual, as the Trustee to administer the Trust and ensure that your children are cared for.
In most cases, a parent does not intend to die leaving minor children. But unfortunately, we do not always have a say in the matter. As such, it is important that parents of minor children address these issues and create an estate plan to prepare for the unexpected and provide for their children’s future.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
Miranda G. Brown
Attorney at Law
Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.
(330) 364-3472
mbrown@kwgd.com