By Angela M. Ward, Attorney
Expectant parents make many plans in the months before childbirth, from furnishing and decorating a nursery to buying clothes and gear for the new baby. They start budgeting for the extra expenses of an expanding family, and they may even start saving for education. Unfortunately, one thing often left out of those plans is a last will and testament.
No parent of young children wants to think about death, but the most important thing they can do is consult a Lancaster estate planning lawyer and create a plan for the care of their children should the unthinkable happen.
What Happens When Lancaster County Parents Die Without a Will?
A parent’s most important job is providing for their children, and that includes ensuring that they are in caring and capable hands no matter what. While parents may assume that if something were to happen to them a close relative or family friend would step in to care for their children, that is not always how the law works. When parents die without a will that specifies guardianship arrangements, or intestate, the decision as to who will be the guardian of the minor children may be decided in court and it may not be the person they would have chosen themselves.
A judge makes a guardianship decision based on the information available and the best interests of the child. Until the judge decides on a suitable guardian, the children could end up in foster care. Creating a will ensures that a guardian chosen by the parents will care for their children in the event of their death. Pennsylvania also has complicated rules regarding intestate inheritance, particularly when the family includes adopted children, stepchildren, and children born outside marriage. In these cases, it is even more important to have a will and to consult a Lancaster County estate planning attorney for assistance in its creation.
What is the Role of a Guardian in a Will?
In the event of the parents’ death, a guardian is a person with whom their children would live and who would handle their assets until they are at least 18, or whatever age the parents designate in their will. Children under 18 cannot inherit, so it is important that parents designate someone who will fill the role of parent, inherit the assets on behalf of the children and manage them until the children reach an age when they can manage them on their own.
How Do Lancaster County Parents Choose a Good Guardian?
Choosing a potential guardian for their children in a last will and testament is one of the most important things young parents can do. Not every friend or relative is a practical or preferable choice as a guardian. Here are a number of things to consider:
- Make a list of relatives and friends who may be potential guardians and have an honest conversation with them. Make sure they are emotionally, physically, and financially up to the responsibility, especially if the estate will not have sufficient funds to provide for the children.
- Choose someone who is old enough to be a responsible caregiver, yet young enough to care for and keep up with young children until they reach adulthood.
- Choose someone with similar morals and values who also has a temperament that meshes well with the personalities of the children.
- Consider how important it might be to keep the children in familiar surroundings before choosing a guardian that lives out of town.
- As difficult as it may be to choose a guardian, go one step further and designate a secondary guardian as well. Someone who is a suitable guardian for the children now may no longer be a suitable guardian in the future if the time comes for them to fulfill those duties. Unforeseen challenges such as divorce, illness, or financial struggles may make it difficult for them to care for and parent young children. When parents choose a secondary guardian, they ensure their children will remain in a safe, secure, and loving home.
A Will Can Provide for Dependents With Special Needs
A will is important for parents who have children with special needs, especially since they will require care and guardianship beyond the age of 18. Guardians for those with special needs must continue their duty of care beyond childhood and into adulthood, so young parents need to thoughtfully choose someone who is able and willing to take on that additional responsibility.
It may also be important to choose a guardian who lives close to any resources a child with special needs requires. In addition to naming a guardian for a special needs child, a last will and testament also allow parents to develop a specialized plan to financially support their child into adulthood without jeopardizing any federal aid they receive. Inheriting a lump sum of cash could disqualify a special needs child from receiving government assistance, such as Supplemental Security Income and Medicaid benefits. Instead, as part of a last will and testament, parents can create a special needs trust to hold bequests and assets. Since the money is not going directly to the child, it will not affect their ability to receive other benefits. A trustee chosen by the parents can spend the money on the child’s behalf for anything from personal care to recreation.
A Will Can Establish a Trust to Help Provide for Your Children
In addition to establishing trusts that specifically address the care of children with special needs, young parents can also use their will to establish a testamentary trust that designates a trustee who will distribute any inheritance to minor children under the terms specified in the will. A trust allows parents to control the funds their children receive, when they receive them, and to some extent how the money is spent.
Parents also can use a trust to allocate funds for education. Typically, a trustee will invest the money and use it for the children’s needs until they reach 18 (or another age designated in the will) and take control of the remaining funds themselves. How long a trustee manages the inheritance may depend on the size of the estate, the expected maturity level of the child as a young adult, and the degree to which the inheritance may require sophisticated management.
Although trusts generally are more difficult and costly to create, they have the advantage of bypassing the expensive probate process and making assets available immediately upon the parents’ death. Whether or not trust is the best choice depends on the parents’ unique financial and family situation. An experienced Lancaster estate planning lawyer can help make that decision.
Why Parents Should Review Their Will With an Estate Planning Attorney
Parents who create a last will and testament to map out a plan for their children’s future may feel like they can sit back and relax, but we all know plans can go awry. No one knows what the future holds. Family situations, financial situations, and the life situations of chosen guardians can dramatically and unexpectedly change. That’s why it’s important for parents to review their will at least every five years to make sure it reflects any significant life changes, from the birth of a child to the sale or purchase of a major asset.
Parents should also regularly review the beneficiaries on their life insurance policies, investments, and other important accounts. Did they name another beneficiary before they had children? Is the beneficiary someone who is no longer part of their life? Even if a will is up to date, it will not override a beneficiary designation on important accounts, meaning those assets could go to someone other than their children.
An experienced Lancaster County estate planning lawyer can help young parents ensure their children will have the care they need in the future. Although children are their most important asset, an estate planning lawyer will also help parents determine what happens to their other assets, including property and financial accounts, and walk them through the important steps of creating a will that accurately carries out their wishes. Contact the Law Offices of Going and Plank today to create, revise, or review an estate plan.
Want to learn more about Wills, Estate Planning, and Trusts? Read these articles and blogs.
8 Things to Remember When Creating an Estate Plan
Estate Plans, Power of Attorney, Guardianship, and Living Wills
Why Young Parents Need a Will in Pennsylvania
7 Steps to Creating a Will and Estate Plan
Estate Planning for Baby Boomers
