Planning for your minor child is critical to ensure his or her’s continued protection in the future. Yet, for many parents, this is not a topic they wish to discuss. It is not easy for any of us to contemplate a time when we are no longer here and another person would need to care for our child. It is critical, however, that we plan forward and address this potential situation. Let us share four possible questions you may use to guide you through this meeting.
The first question you may want to ask your estate planning attorney focuses on who can be appointed in your will to be the guardian of the person and property of your minor child. Parents, jointly, are the natural guardians of their own children and of their adopted children, during minority, unless the parents’ parental rights have been terminated. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries.
If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom sole parental responsibility has been granted, or if the parents have been granted shared parental responsibility, both continue as natural guardians. If the marriage is dissolved and neither parent is given parental responsibility for the child, neither may act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise. If there is no natural guardian, the court will appoint who the deceased spouse requests in his or her will unless the person is disqualified for fitness reasons.
The second question to consider asking is, what will happen to the assets once the child attains age 18? It is important for you to know that the child must be awarded the assets without restriction. This is unless the deceased parent’s estate plan provides otherwise. For example, the parents could create a will with his or her estate planning attorney that provides for the assets to remain in a testamentary trust. In that case, the assets would continue to be managed by the trustee named in the will until a time established in the will. The assets may be used for the child’s education or health care until the age the trust states the assets should be distributed to the child.
A third question you may want to ask is whether the guardian should be bonded. The judge is required to bond the guardian for at least the amount of the liquid assets unless you waive the bond requirement in your will. You may want to consider the same bond requirement in your trust planning as well.
The fourth question to consider asking is who should be stated in your will as an alternate or back up caregiver for your child. This is a plan you want to put in place should the person named as guardian die before his or her work caring for your child is complete.
We know this article may raise more questions than it answers. We want you to know that we are here to help you create the plan you need in order to provide for those you care for most. Do not wait to contact our law firm to schedule your first estate planning meeting today.