ESTATE
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Planning Your Children's Future if You Die
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![]() our children's future depends on you. But what if you're not around? Who will take care of them?
If you do not have children or your children are grown and gone, you may think this issue is irrelevant. However, you probably have siblings or friends who qualify, and there is vital information that they need to know if they want to properly protect their children's future.
The worst possible situation in families is when the parents die with no will, no provision for guardians, no arrangement for adequate money to see the children through school and into adulthood and no arrangement for managing their inheritance. The children must depend on the good will (or mercy of) their relatives.
Making provisions, conveying your love
If you have children, think of the immediate message you send if you die and no provisions had been made, or if these provisions were inadequate. Children always blame themselves for parental shortcomings, and they would undoubtedly think that you didn't love them enough to plan properly for them. The long-term effect is even worse - they may end up with the relative you didn't want to raise them.
If there is not enough money to provide for them, their new guardians and the guardians' family (usually their cousins) may resent your children for making them skimp on extras and for sharing their bedrooms. People you never trusted would oversee your children's money and their financial futures. Even if you like the person who ends up with access to your money, you have saddled them with innumerable forms, tax returns and other legal hoops that they must jump through because they were appointed by the court instead of by your will. Your children could be caught in a life-long nightmare, all the while wondering if you really loved them.
Appointing the right guardian is critical
If you are divorced or a single parent, the need for planning for your children is obvious . If you're married, you probably assume that your spouse will automatically become your children's guardian. This usually is the case, but what if you both die simultaneously? The only solution is proper planning. If you have not been motivated by anything else to get your estate affairs in order, think of your children. That should provide the motivation you need.
The most important decision is whom you appoint as guardian. The guardian acts as a surrogate parent ╛ making all the major and minor decisions one makes in raising a child to adulthood. The custom has been to name your parents, a brother or a sister, but that is not necessarily the norm anymore.
Many people who start families later in life realize their own parents are older and the burden of raising young children could be too much. You may not feel comfortable with the lifestyles led by your siblings, which means you wouldn't want your children raised by them. Extended families no longer live in the same city or state, and you may not want to uproot your children to move away from your friends and school.
Naming non-family members as guardians
As a result, an increasing number of parents are naming non-family members as guardians. They're usually long-time friends who know their children well. There is nothing wrong with doing this if you feel that this is in the best interest of your children. Parents worry about hurting their relatives' feelings, but what comes first - your children's future or your brother or sister's feelings?
If you're divorced, the courts favor your ex-spouse if the child is his or her biological or adopted child. If you don't want to name your ex-spouse as guardian and you have good reasons why this is the case, you need to get the help of an attorney now to show why that person is not suited for the task. The court will not accept reasons such as, "We never got along." But it will consider serious issues such as alcohol or substance abuse, verbal, physical, or sexual abuse or irresponsibility (not visiting the children regularly or missing planned visits).
A heart-to-heart talk a prospective guardian
Before you name anyone as guardian, sit down and have a long talk with that person. Explain your request, the reasons why, and assure them that there will be adequate money to care for your children. Give the potential guardian plenty of time to reflect and consider the consequences. When your children are old enough to ask what will happen to them if you die, answer truthfully. If your choice would cause hurt feelings, explain that it is to be a family secret because you don't want anyone's feelings to be hurt. Also, assure them that the likelihood of this happening is very small.
Naming the right guardian is the first step. The second is to make sure, as best you can, that your children are raised as you would like them to be. There are no guarantees, but your best bet is to write a testamentary letter that describes your wishes for their education (private, public, etc.), religion, lifestyle and so on. In your will, you usually deal with larger items of value, bequeathing the children to the people of your choice, but in a testamentary letter, you can divide up your mementos, such as jewelry and other items as you wish.
This is also helpful because it makes your choices clear and identifies which possessions belong to each child when it comes time for the child to leave home. Be sure to mention the existence of your testamentary letter in your will and keep both documents in the same place. Many experts recommend that this testamentary letter not be prepared and typed by an attorney, but written out in your own hand, signed, dated and witnessed. This is likely to make the wishes of the testamentary letter enforceable under law.
Doing a capital needs analysis
A very tricky question is that of who should manage the children's money. Before you get to that point, go back and do the life insurance capital needs analysis to make sure you've set aside enough money. There is nothing worse for your children than living where they are resented on a daily basis, because they have caused a financial or physical strain on the new family. Make sure that you have provided more than enough for their living expenses, private school (if necessary), lessons, hobbies, medical expenses including therapy (which most orphaned children will need). Most parents also want to leave a nest egg with which their children can start their adult lives.
Assess your guardian's situation and figure out if your children's presence will put a physical crimp on space. If so, be sure to leave extra funds for the guardian to add a bedroom or recreation room to his or her house. You should also leave extra funds in case your child has special needs that may make it difficult for that child to support himself in adulthood. Your children will probably be eligible for Social Security (check on your specific benefits), but only during childhood. If the capital needs analysis shows that you need more money, buy insurance now. You are probably better off purchasing term insurance because you are likely to need a large policy (see my column on life insurance policies).
Getting a separate trustee
You can make your children's guardian the trustee of their assets as well, but usually it's a good idea to separate the two or to name a co-trustee. These arrangements are made when you set up a trust for your children under your will, and name the trustees of your choice. Naming a co-trustee (or not naming the guardian trustee at all) relieves any suspicion in anyone's mind that the guardian may not be using the children's money in their best interest. If the co-trustee is a professional investment manager, this ensures that the money will be managed and invested as well. Make sure your will contains a provision for handling a situation where if the co-trustees are deadlocked, you can name a close family member or a friend who knows your children well, whom they are required to consult. Usually, that family friend can get the co-trustees to agree what is in the best interest of the children.
Dispersing your child's money at the right ages
The last question is what to do with any money left over after your children have reached adulthood. Unfortunately, becoming a legal adult does not automatically make a person responsible enough to manage money. In fact, a person who's just turned 18 typically is not ready for the responsibility of managing and saving money. It's probably a better idea to have the funds remain in a trust and released in stages - for example, half at 25 and the remaining balance at 30. If you do, include in your will the stipulation that the trustee can release funds sooner for medical or educational expenses, to buy a home, to start a business, to use in an emergency or to meet any other need deemed worthwhile by the trustee.
By the time the costs of bringing up your children have been paid, there may not be much left over. If you do not think there will be much money left over, you may want to terminate the trust and have the assets distributed to your children once they reach age 21.
But if you are cutting it close, you probably do not own enough insurance. Prospective guardians and trustees should know all the details of your estate plans. Give them copies of the relevant parts of your will. Make sure you obtain their consent in advance.
Keeping a guardian's plans flexible
Hollywood has scripted several comedies about surprised guardians who "inherit" children. The reality, of course, is such a scenario isn't funny at all, and your children are the ones who will suffer.
Keep your guardianship plans flexible and review them every year. Especially as they enter adolescence, your children change as they get older and the guardian who seemed perfect two years ago might not be unable to deal with a rambunctious teenager. Your estate planning should reflect all these changing needs and to anticipate and deal with all the potential problems.
If you die, your children will miss you and think of you every day for the rest of their lives. Proper planning for them now, in case the worst happens, may make or break their future happiness. You love them too much to take that chance.
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Illustration by Terry Allen Copyright 1998 Microsoft Corporation
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