In 2013, my life changed forever; I became a mommy. In the months leading up to the birth of my daughter, Annabelle, I read every child care and mommy guide there was to offer. Books like What to Expect When You’re Expecting and The Ultimate Parenting Guide were my nightly reading material, and I loved keeping up with parenting blogs. I was anxious to make sure I had everything lined up for our new baby. (Laughable to even think that was a remote possibility, right?)
What I didn’t find a lot of information on in those books or blogs was how to protect my child in the event that something happened to me or my husband. Most of the new parent books had a checklist that included “update your Will” but that was the only mention of any type of estate planning. As a new mom and an estate-planning lawyer, I understand that legal terms like “estate planning” are hard wrap your head around, but I find it strange that you can find an entire chapter in some new parent books dedicated to the pros and cons of pacifier use but nothing more than a sentence on planning to protect your minor children in case you died or became incapacitated. This is why I wanted to help new parents learn more about estate planning. I feel the more you know the less frightening estate planning is to your family.
So, what is an estate plan? People often think an estate plan is only for wealthy families. I think one of the reasons that many people have that misconception is because of the way lawyers and Wills are portrayed on television or in movies. Think about what you see in those programs or movies - there is almost always the wealthy old dad or uncle who dies, and the family is called into an attorney’s office where the attorney “reads” them the Will. The attorney’s office is always stuffy and covered in marble or mahogany. The person who dies always has millions of dollars that he is leaving to his family or his mistress. Those programs and movies send two messages that are so far from the truth they are comical. The first ridiculous message those programs and movies portray is that attorneys are old men who charge huge fees (how else could they afford those mahogany offices, right?) Well, despite the fact that every once in a while older male attorneys do call my office and ask to speak with “Mr. Stratton”, I am in-fact a female, and I am thankful that the good-ole-boy system of practicing law is dying out. Also, at Stratton & Reynolds, we know that young families are often money conscious, which is why we try to keep our fees reasonable, especially for young families. The second, and probably more disturbing misconception portrayed by these shows or movies is that you do not need a Will (or any other type of estate plan) unless you have millions of dollars. If you don’t remember anything beyond this sentence, please know that it does not matter if you have little to no assets. If you have a minor child, you need an estate plan.
Why? Because an estate plan is in essence a combination of several legal documents in which you outline things such as: who will act as legal Guardian of your minor children if you become incapacitated or pass away, where will your children live, how will the assets you do own be managed or given to your children, etc. Without a proper plan, you could leave your family scrambling for answers or put the answers in the hands of a judge who does not know you or your family.
As a parent, I obviously want to financially protect my child, and I will discuss how proper estate planning will allow you to do that in another blog post or series of blog posts, but for this post, I want to focus on the non-financial planning that is needed to protect minor children. I want to particularly focus on who will care for a child if the parents are deceased or incapacitated. This person is known as a Guardian.
Now, it is important to understand that in South Carolina parents are legal Guardians of their children until their children turn 18 (unless a court order dictates otherwise). But, if their parents are deceased or incapacitated, who is caring for the minor children? Well, the good news is that if you have a proper estate plan, you get to pick; you get to choose the Guardian(s) of your minor children! The bad news is if you don’t have a proper estate plan, a local judge gets to pick. I personally know and like most of our local judges, but I definitely do not want them making decisions about who will care for my child. They do not know my family. They do not know that there are people in my family that I would not trust with $100, let alone with the responsibility of caring for my child. That is why planning is so important.
So, how to pick Guardians. Every family situation is unique, but there are usually several factors you want to consider when choosing a Guardian:
- One of the most important factors is who you believe will provide a loving and stable home for your children? If you brother is a great guy, but he never lives in one place for more than a couple of months, maybe he is not stable enough to care for your kids; maybe you are okay with your children moving frequently. Again, every situation is different.
- You will also want to consider factors such as where do you want your children to live? Many families are like us and have wonderful family that live in a different country or on the other side of the US? Are you okay with your child being uprooted and moved to a different part of the US or world?
- Are your potential Guardians going to respect your wishes for how you want your children raised, such as religious beliefs, educational goals, etc.?
- Will your potential Guardians have the time and resources to take care of your children? I had one client, for example, who wanted her sister to be the Guardian of her kids, but her sister already had eight kids of her own. The client chose a different Guardian because she had never considered if her sister could care for an additional 3 kids on top of the eight she already had.
Every family situation is different, and various factors come into the decision-making process for Guardians. But, most parents, including myself, find these questions hard to answer. The important thing is that you discuss these issues; you make the decisions. Not the local judge!
What makes the process even more difficult is that it may not be sufficient to choose just one or two potential Guardians, you may need backups. For my husband and I, we would absolutely want my parents to be Guardians of our daughter. They are wonderful, stable, hardworking people with similar ideals and beliefs, and they would raise our daughter as their own if something happened to us. But my parents are obviously older than us, my father has a heart condition, and we travel with them frequently. What if my parents were too old, had health issues, or died in a car accident at the same time we died; who then would we trust to be Guardian of Annabelle? For our plan, we had to pick backups.
A discussion about the possibility that you may not be here to raise your child is one of the hardest discussions you can have, but it may be the most important one. Even if you do not own any assets, choosing proper Guardians is reason enough for any parent of minor children to have an estate plan.
If you have questions about estate planning or about how to pick a Guardian, please feel free to call my office and schedule a FREE consultation. Or, you can click here for our online scheduling page to schedule your consultation via our calendaring system.
If you would like more information on estate planning in a less formal format with dinner, we have several seminars coming up. Click here to RSVP for one of our estate planning seminars.