Whether your days are spent wrangling toddlers, driving pre-teens to soccer practice and dance recitals or you just brought your first bundle of joy home from the hospital, if you have minor children, it’s critical to have an estate plan to ensure your wishes would be carried out in the event both you and your children’s other parent die or become incapacitated.
Of course, the subject is a difficult one to tackle, but for as emotional and uncomfortable as it is to discuss and plan for now, for most parents, the peace of mind that comes from knowing that their children will be taken care of according to their wishes if the unthinkable happens outweighs any temporary discomfort.
While everyone’s circumstances and needs are unique, for parents of minor children it’s particularly important to consider the following items when creating an estate plan.
Name a guardian
Naming a guardian for your children should both you and your children’s other parent die or become incapacitated is one of the most difficult decisions a parent must make, but it’s also one of the most important. While the conversation might be difficult, if you don’t appoint a guardian in your will, it will be up to the court to appoint one should the need to do so arise.
When appointing a guardian for your child(ren) in your will, you’ll need to list a guardian for each of your children (if you have more than one); you can list the same person for each child, but it’s also perfectly legal to list a different guardian for each child. Similarly, you can list two guardians if you wish; this is common in situations where, for example, you are appointing a married couple as guardians. Just be sure to list the names of both individuals.
Determine who gets and controls your assets
For most parents, a close second to ensuring their children will be under the care of the right person is ensuring their children will be taken care of financially. Many parents wish to leave their children an inheritance, but children cannot legally own property which means an adult must manage the property until the child is of legal age.
If you intend to leave an inheritance that is greater than $11,000, if your child is listed as the beneficiary of any life insurance plan or if you leave real estate or any other investments, then an adult will be put in control of the inheritance until the child is 21. This role is called a conservator and if your estate plan doesn’t identify who should be appointed to this role, then the court will decide.
When the child turns 21, Colorado law allows him/her to receive the entire inheritance in a lump sum.
However, parents often opt to have the property they intend to leave as an inheritance held in a trust, which allows them to control when the child receives the inheritance, whether that be in a lump sum at an age that is older than 21, in installments at different ages or on another schedule that makes sense to the parents.
Bonus tip: You should also name beneficiaries for any 401(k) or IRA accounts you have. This is quick and easy to do and can be changed at any time. Just ask your employer or account custodian for a beneficiary form.
Create a living will
Every person 18 years of age or older should have a living will (also known as an advance medical directive) and durable medical and financial powers of attorney. Unlike your last will and testament, which is where you leave assets and name a guardian, these documents spell out things like who you want to make your medical and financial decisions if you become incapacitated and whether you’d want to be kept alive on a ventilator.
Your advance medical directives can be as specific as you’d like; you can outline certain circumstances in which you’d want, or not want, extraordinary life saving measures (like CPR) or if or how long you’d want to be kept alive on a ventilator.
While these topics can feel unpleasant, or downright impossible, to think and talk about, having these documents in order can be a huge blessing to your family if you become suddenly, severely sick or injured, since it relieves them of the burden of making these decisions for you.
Bonus tip: It’s important to remember that these documents – both your last will and testament and your living will – should be reviewed and updated on a regular basis. These documents aren’t static and can – and should – change and evolve as your life’s circumstances evolve and change, for example, if you get divorced or remarried.
While these are all important considerations to take when creating your estate plan if you have minor children, this list is not exhaustive, nor is it one-size-fits-all. The best way to make sure your estate plan is as comprehensive as possible for protecting your minor children is to work with an attorney like Robinson & Henry’s Colorado Springs estate planning attorney Michael Hanchett.
Michael Hanchett is Robinson & Henry’s lead estate planning attorney. He helps individuals and business owners plan for the future by drafting powers of attorney, last wills and testaments, trusts and advance directives. Please call 303-688-0944 to schedule a free consultation with Mike.