PREPARING FOR MULTI-DISASTER

What new parents need to keep in mind is not just what happens in the event of a disaster, but a double disaster. For example, if you lose your plane ticket on a business trip it's annoying but fixable. If you lose your wallet as well, then you are dealing with major issues. Imagine being in London without your wallet, obviously, that's bad. Now imagine being there without your wallet and passport, that's a multi-disaster.

When thinking about who will take care of your minor children in the case of your passing, you really need to be worried about plan C, D, E, and so on. For most new parents, but not all, plan B is usually somewhat obvious, and they imagine it can ‘take care of itself.’ Of course, they will go to their grandparents, or their sister who just had kids… But what if those obvious choices aren’t available when the time comes??

The real exposure your young children face is what if plan B doesn’t work? What if your grandparents are also no longer around, or what if your sister is in a bad marriage while your other sister is dealing with bipolar disorder or an abusive partner? The tree of unfortunate circumstances can sometimes branch out quite far, and addressing those exposures is the main focus of estate planning for new parents.

Don’t think of this as being over-protective, but simply as being prepared in case guardians 1 and 2 are no longer available. Your roster should go at least 2-3 people down.

NOT TYPICAL ESTATE PLANNING

Historically, estate planning is associated with old age, wealth transfer, avoiding taxes, and disposition of family assets. Many people think of inheritance and fighting over the will, stories like King Lear or the HBO hit show, Succession, come to mind. While this is an important part of estate planning practice, for new parents, it is entirely different.

The issue that new and expecting parents face is naming guardians and naming trustees, which is done by a will. The process for new parents is much less about wealth transfer per se; most could deal with disposition of assets in one sentence: “all to spouse, otherwise in trust for children.” There would be various trust terms, such as age restrictions, age of withdrawal/distribution, and what percent each child gets. This would be part of a package we typically offer new parents, but it is not the biggest concern parents face.

Naming guardians and naming trustees in your will and trust is the most important factor when minor children are involved. The package for those starting a family would also include healthcare proxy, power of attorney, and a living will, but the priority is going to be planning around minor children.

CASTING A PLAY

The work of drafting a will becomes a process of naming guardians and naming trustees in a roster of success, much like casting a play. Your children’s grandparents may be a great choice for guardianship now but may not always be. To deal with that issue, you could use a condition such as ‘if both are alive,’ or ‘if both live in New York City,’ then they shall serve as guardians. These types of conditions often work best with delicate/sensitive language. Be aware of the grandparent’s desires but also consider their capabilities. If at any time they are no longer a good fit, I encourage my clients to come in and change the wills.

Naming a backup and a 3rd person is important in case the first choice can’t or won’t serve. There can also be possible exclusions for certain family members. Imagine a close aunt, Susan, who is full of good intentions but just not a good fit for child-rearing. Susan could be excluded directly by name in the will, or you could just name 5 or 6 candidates ahead of her. My clients are usually aware of when they have someone in their family with major issues and know to not use them when naming guardians or naming trustees.

Be specific about some things, not so much about others

You may have other conditions you want in place for minor children, but you need to be a bit careful here. Adding conditions like learning to read by a certain age, going to college, or choosing (or avoiding) a particular profession risk being too specific. For instance, if you put that they must go to a private school, that could foreclose an excellent public school opportunity that may better serve special needs or make it impossible to live with a guardian who can’t pay for private school. Always be aware of the law of unintended consequences when adding extra conditions.

However, if certain conditions are very important to you, then by all means include them in your will. For instance, if it is incredibly important to you that they visit grandparents overseas, you can ensure that trustees make funds available or that. Or if you want them at a specific school that meets their special needs or academic aspirations, you could put that at even higher importance than guardianship in your will.

Parents should feel free to bring these conditions up with their estate planning attorney. The freedom to educate and raise your children as you see fit is your right as an American, and you’re entitled to plan for that how you wish.

Guardianship under state law

One thing to understand about guardianship is that it is an issue of state law, and some states have different laws on the eligibility of foreign persons to serve as guardians. If there is a wonderful person from out of the country in your life, you will want to work with a planner to make sure they are eligible for guardianship. They may need a co-guardian or acknowledgment from a foreign person to be eligible. In New York and Connecticut, it isn't forbidden to name a non-US person as a guardian. However, in New York, a little drafting ahead of time will make this process go down much more smoothly.

Also, people don’t realize that guardianship is an appointment that is revocable by the court. It is not the same thing as adoption, and it isn’t permanent. In New York, if an uncle is appointed as guardian, guardianship remains under the New York court’s jurisdiction, even if they move out of state. If other family members have an issue with the guardianship, they can object to the court, but they must object to the New York state court. Guardianship will always be under local law and it is helpful to involve that in the planning.

Plan Ahead

Certainly, not all new parents think about planning their will and trust before having kids or even shortly after their kids are born. However, the ‘plan B’ that most people assume will happen in the unlikely event of their early death is not a guarantee. With other factors at play, plan C or plan D may not be guaranteed either. That is why it is best to get your wishes and desires for what will happen to your children documented.

Bischof & Bischof LLP is happy to discuss how to help ensure that your children have the future you wish for them and to plan for several layers of contingencies. Contact us today to discuss a plan for your children’s future.

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