Parenthood changes everything in a person’s life. A parent is suddenly responsible for another human being who, for the first few years of their life – some might even argue for their entire lifetime – is completely dependent on you.
This dependence can be physical, emotional, and financial. Some things the law may not be able to legislate, but the responsibility and obligation to take care of your children is one thing that the law supports and promotes.
These days, any parent will tell you, taking care of children is expensive. And it is no longer just about making sure they have three square meals a day. Parenthood involves decisions about care, schools, extracurriculars, medical and health needs and support, physical and emotional safety, and the daily physical and emotional care and connection of a family.
If you are a new parent, it won’t be long before your thoughts race forward to the future. What happens if the unexpected happens and one day you are no longer there to take care of your children? Who do you trust to take care of them? Are you able to set aside the finances to make sure they are taken care of until they can take care of themselves?
There are plenty of “What if’s?” that can race through a parent’s mind whenever they contemplate the future. Here is where a good estate plan comes in.
A good estate plan helps to answer the parent’s “What if’s?” and restores some peace of mind to the ever-worrying parent. Planning for any and all contingencies is paramount.
This naturally raises the question, “What does an estate planning lawyer do when children are involved?” Beyond simply drafting documents, a good estate planning lawyer can help create legal and financial safeguards that protect your children should the unexpected occur.
If you become the parent to a child, updating your estate plan to make these kinds of preparation is important.
Otherwise, you roll the dice that the adults in your child’s life and the legal system will take care of them when you are gone.
Selecting a Guardian
The very first question that would need to be addressed is the obvious one. If something happens to you and your spouse, who would take care of your child?
The question is a multifaceted one. Who do you trust do be a substitute parent for your child? Who has the time and the capacity to be a parent? Who is actually willing to step in and be responsible for your children? Who would be trustworthy to take care of your children and whatever assets you may leave behind for their benefit?
Under California Probate Code §1500, a parent may nominate a guardian for the person or the estate, or both, of their minor child. This is a formal nomination that is made in writing and signed by the parent. This nomination may be stipulated to become effective upon the occurrence of a condition or conditions, including the parent’s legal incapacity, absence or death. Under Probate Code §1502, this nomination shall be given due weight by a court.
This is one of the most significant uses of an updated estate plan for families, and in itself may answer the question of what does an estate planning lawyer do.
Now consider what happens when you fail to make such a nomination.
Without a formal nomination by the parents, the choice of who becomes the guardian of minor children is left to the court. Interested persons may petition for guardianship, but the choice, ultimately, falls upon the court. And while the court may seek to do what is best for the children, this choice is based on factors that a court would consider, which may not necessarily be the choice of the children’s parents.
This type of uncertainty over your children’s future can be addressed easily enough with the proper estate plan.
Creating Trusts for Minor Children
As earlier stated, care for minor children in cases of unexpected events involves future care for children, physically, emotionally, and also financially.
The catch here is that a minor child still lacks the maturity and the legal capacity to act on their own. They can’t directly manage assets, a business, enter into binding contracts, or make their own financial, healthcare, and other “adult” decisions.
If you are also leaving them with assets, it bears thinking about how you can best protect the financial health of your children long term.
For most, this entails the creation of a living trust for the benefit of their children.
So even if the child cannot directly inherit, hold or manage their inheritance, this can be done for them through a trust that is managed by a fiduciary.
Terms and conditions may be provided for how the child’s regular upkeep will be paid, and ultimately, how the transfer of the trust assets to the child may facilitated – at least up until they become of age and can manage their own assets.
Whether or not the child will choose to retain an estate planning lawyer when they reach legal age is a question for your child when they grow up. For you, the question currently is, is a living trust for the benefit of my minor children a good and feasible inclusion to your overall estate plan.
Minor children cannot legally own property in California. Typically, a court will appoint a guardian of the estate to manage funds for the benefit of the children until they reach legal age. Rarely, however, does an 18 or 19 year old manage the sudden influx of wealth with maturity or wisdom.
A more thoughtful alternative is the creation of a living trust set up for their benefit and overseen by a trustworthy trustee. This trust can facilitate the distribution of assets to your children based on terms you set, including defining the distribution of assets to cover the child’s health, education, maintenance and support, while delaying full distribution until the child reaches a more mature age such as 25 or 30 years.
Conclusion
It might be said that the creation or updating of an estate plan is just as much responsible parenting as anything else you do to take care of your children.
You are securing not just their present welfare, but also their future, by preparing for the unexpected where you are suddenly not in the picture. Will your children grow up with someone you trust? Will they have the resources to ensure their continued growth and development until they are able to take care of and provide for themselves? Are you able to ensure that other people will not take advantage of your minor children, physically or financially? Are you able to ensure their long-term welfare through a well-structured trust?
A good estate planning attorney can help you design a customized estate plan that will fit your unique circumstances and meet your specific needs.