By Angela M. Ward, Attorney
Expecting parents to plan for months ahead of their child’s birth. They furnish and decorate a nursery, buy clothes and toys for the baby, and start budgeting all the extra expenses that a baby brings into their growing family. They may even begin saving for higher education. However, in all that planning and consideration of the future, the one thing most expecting parents leave out is revising or creating their last will and testament.
Of course, no parent wants to think about death and what will happen to their children when they are gone, but the most important thing they can do for their child is to consult a Lancaster estate planning lawyer and make a plan for their children should the worst happen.
What Happens When Parents Die Without a Will?
The most important part of a parent’s job is providing for their children. That includes making sure they are incapable and caring hands in any situation. A lot of parents assume that if something does happen to them, a close relative or friend will step in and take care of their children, but that cannot and should not be assumed. When parents die without a will that plainly specifies with whom the children should reside and who should handle the children’s assets, the decision may be decided in court, and the courts could choose someone that the parents would not have picked.
Judges make guardianship decisions based on the information they have and the interests of the child. It could be that the children end of in foster care until a judge settles on a suitable guardian. Creating a will allows the guardian that the parents chose to care for their children after death. To make matters more complicated, Pennsylvania has very detailed and intricate laws regarding intestate inheritance, especially when the family includes children that were adopted or born outside marriage, or stepchildren. In those cases, it is all the more crucial for there to be a last will and testament and to consult with a Lancaster County estate planning attorney to create a sound legal document.
How Should Parents Choose a Good Guardian?
A guardian, by definition, is a person responsible for one who is not able to be responsible for him or herself. If a child’s parents die, a guardian is the person with whom their child will live and the person who is responsible for handling the child’s assets until they are 18 (by default because minors under the age of 18 cannot inherit) or whichever later age that the parent may have specified in the will. It is possible to designate two different people as the guardian with whom the children should live (guardian of the person) and another as the guardian to handle the children’s assets (guardian of the estate). It is critical that parents select guardians with whom the children will be comfortable and who will be able to manage assets on their child’s behalf.
Choosing a potential guardian for children is one of the most important things expecting parents can do. Of course, not every relative or friend will be a good choice for guardianship. When choosing a guardian, consider the following:
- Make a list of various relatives and friends who could be good potential guardians. Have an open and honest conversation with them. Make sure they are emotionally, financially, and physically capable of this grave responsibility.
- Choose someone who is young and healthy enough to stay around until the children reach adulthood, but old enough to be responsible and mature enough for the job.
- When thinking about a guardian, consider whether the person has similar morals and values. Also, think about their temperament and whether it meshes well with each child’s personality. Watch how these people interact with the children if possible and try to judge whether they would be a good fit.
- Think about how important it could be to keep the children in familiar surroundings. It is often tempting to choose someone who lives out of town or even further away, such as a close relative. But after losing parents, kids need as many familiar support systems as possible. The town where they may already have friends and be integrated into the community is usually the best choice if possible.
- While it can be difficult enough to pick one guardian, choose a secondary guardian too. Someone who is a good fit for the children now may not be suitable when it is time to fulfill their duties. Many unforeseen changes, like illness, financial hardship or divorce, can make it hard to care for young children. A secondary guardian makes sure the children will have a safety net and a secure, loving home even if things change in the future.
What Else Should Expecting Parents Know About Wills?
A will serves a number of different legal functions. For instance, expecting parents who are saving money for their children’s future may want to know that they can establish a testamentary trust to help provide for their children in the future. With the help of a Lancaster County estate lawyer, under Pennsylvania law parents can designate a trustee who distributes any inheritance to children under the age specified in the will (or age 18 if not otherwise specified).
Expecting parents should also understand that life insurance policies often need clarification in wills. For example, beneficiaries can be named before having children, and parents may need to adjust who receives the life insurance benefits. Even if a will is recent, it will not override existing beneficiary designations on important accounts, which means those assets could be given to someone besides the children.
Last wills and testaments serve many vital legal functions. Consult a qualified Lancaster County estate attorney for a free consultation on what a will can do under Pennsylvania law, and what to look out for when making one.
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