Estate Planning Awareness Week: The Importance to You and Your Family of Having an Estate Plan 

In 2008, Congress recognized the need for the public to understand the importance and benefits of estate planning by passing House Resolution 1499, which designated the third week of October as National Estate Planning Awareness Week. Nevertheless, according to a 2019 survey carried out by Caring.com, 57% of adults in the United States have not prepared any estate planning documents such as a will or trust despite the fact that 76% viewed them as important. Many of the respondents said this was due to procrastination, but many others mistakenly believed that it was not necessary because they did not have many assets.

Why should you have an estate plan?

An estate plan can provide significant peace of mind by ensuring your assets are protected, plans are in place in the event you become ill, and your property is passed down according to your wishes.

What key topics should you consider?

Do you have a last will and testament and/or a trust? If you do not have these important documents, state law will determine who will inherit your property—and thus it may not occur in the way you would have chosen. In addition, someone appointed by the court, instead of a trusted person of your choosing, will be in charge of caring for any children or pets. Spelling out your wishes in a will or trust will also prevent unnecessary confusion, anxiety, and expense for other family members when you are gone.

Have the proper powers of attorney been prepared? A financial power of attorney will allow you to designate an individual to make financial and property decisions for you should you become unable to handle your own affairs. A medical power of attorney enables you to designate a person you trust to make medical decisions for you when you are otherwise unable to speak for yourself.

Make sure that you have an advanced directive, also called a living will, which memorializes your wishes concerning your end of life care, such as whether you would like to receive life support if you are in a vegetative state or terminal condition.

Do you have insurance? If you become incapacitated or die, it is important for your family or loved ones to have information about your insurance (such as life, health, disability, long-term care, etc.) so that claims can be filed.

Compile a list of all of your accounts and other important information, including bank and investment accounts, titles to vehicles and homes, credit card accounts or loans, digital accounts (such as Facebook, LinkedIn, and Twitter) and passwords, Social Security cards, passports and birth certificates, which may be needed to manage your property when you are incapacitated or settle your estate once you are gone. This information should be kept in a safe place and shared only with trusted family members or loved ones.

A list of legal, financial, and medical professionals who have performed services for you is also important. The list should include their contact information so your family can easily reach them in the event their help is needed if you become disabled or die. If desired, you should also ensure HIPAA authorizations are in place with medical professionals to ensure your family members are able to obtain the needed information.

How should you encourage your family members to create an estate plan?

Estate Planning Awareness Week is a great opportunity not only to take steps to make sure your own estate plan is in place but also to talk to your family members, especially elderly parents, about creating an estate plan. Estate planning is often a difficult topic to broach, as it brings the unpleasant topics of aging and death to the forefront of our minds. Here are a few tips to help you start the conversation.

Be sensitive to your family members’ feelings. Put yourself in their shoes, and keep in mind that few people are eager to dwell on the subject of their own death. One way to begin the conversation is to talk first about the need to plan for illness and to provide instructions in the event they become too ill to communicate with doctors or handle financial matters for themselves. The conversation can then naturally progress to the importance of having an estate plan that will enable their assets to be transferred in the way that they wish, provide for the care of any dependents or pets, and minimize any taxes, court costs, and legal fees. Communicate that you are not trying to control their decisions, but only want to ensure that their own wishes regarding their medical care and their property are known—and that all their instructions are in writing to guarantee they are carried out.

Involve other family members in the conversation. If you are planning to speak to your parents about the need for an estate plan, it is important to try to include any siblings in the discussion to avoid giving the impression that you are trying to influence or control your parents’ choices. You and your siblings should emphasize to your parents that none of you are asking about what you will inherit, but just want to make sure that their wishes are carried out if they become ill or pass away.

Consult an estate planning attorney. An experienced estate planning attorney can help you and your family members create an estate plan tailored to meet each of your unique needs and carry out your wishes—or help you update a pre-existing estate plan. Estate planning attornies can provide each family member with guidance and information about the options available to them. I can help each of you put a plan in place that will prevent unnecessary stress, legal expenses and taxes, uneven inheritances, disputes between family members, and delays in passing life savings on to loved ones. In addition, it will provide you and your family members with the peace of mind that comes with knowing there are plans in place for your care if any of you become ill and that your wishes will be honored once you pass away. Please call me today to set up a meeting.

Back-to-School Preparations: Not Just About the School Supplies

Use This Time to Revisit the Parts of Your Estate Plan that Impact Your Children Most

With all the considerations about your children’s wellbeing weighing on your mind from day to day, it can be easy to forget about some of the most important factors in keeping them well cared for and secure: naming a guardian in your estate plan.

When was the last time you reflected on your selection of a guardian? If the answer is hard to pinpoint, it’s probably time to revisit this issue. Children change a lot from year to year as they mature from infants into their teenage years. Their care needs and who would make a good guardian can change over time as well. Is the person you previously appointed as their guardian still the best choice? Because your children’s lives are constantly evolving, something that worked even a few years ago may be out-of-date now.

Back-to-school time is a perfect reminder to revisit your estate plan and guardianship designations. Here are the specific areas we’ll want to address:

Review and refresh of guardianship nominations: Is the guardian you’ve chosen for your children in the event that something happens to you still the person you would want to fill that role? Are they still available to do so, and would your children be satisfied with this choice of guardian?

Review and refresh intent letters: If you’ve used intent letters in your estate plan to provide additional meaning and context to your guardianship designations and other estate planning documents, it’s a great time to make sure those are reflective of your current goals and wishes as well.

Review and refresh your estate plan: It’s always a good idea to keep your estate plan as up to date as possible. The addition of a new child to your family by birth or adoption may mean your plan requires substantial changes. This is also the case if one of your children has turned 18. If either of these events occurred since our last assessment of your plan, it is imperative that you don’t wait to make any necessary alterations to your plan.

Review college savings plans and strategies: Do you have a child who is preparing to attend college in the coming years? We can explore various planning strategies to help financially plan for the cost of tuition and help your family make strategic choices about higher education planning. It’s never too early to begin researching scholarship opportunities if you have a child already in high school. There are also a variety of accounts, such as 529s, UTMA/UGMA, ESAs, and HEETs that can be used to reduce the financial toll of tuition.

Back-to-school time means a flurry of activity for most parents. While shopping for supplies and attending school functions may dominate your to-do list, remember to set up an appointment to review your estate plan for any necessary updates that could impact your children’s wellbeing. I am always here to help. Please email me today.

Estate Plans for College Students and Other Young Adults

As the end of summer swiftly approaches, the parents of young adults experience a mixed bag of emotions.

It can be exciting to see your children branching out and becoming successful adults in their own right — a time full of hard work and self-discovery that hopefully lays the groundwork for a fulfilling career in the coming years.

But it can also be a time of anxiety for some parents. We all want to know that we are doing absolutely everything we can to make sure our kids stay safe, healthy, and secure so they can pursue their dreams to the fullest.

Preparing for legal adulthood

Whether your child is just turning the corner on their senior year of high school or they’re already in the midst of their undergraduate studies, their 18th birthday undoubtedly marks the transition to adulthood when it comes to their legal affairs. This can impact you as their parent in a few distinct ways:

Medical decisions: When your children become legal adults, you no longer have the authority to know their medical details or make healthcare decisions on their behalf. Without proper legal documents in place, you may need to petition a court to be named as guardian or conservator — a time consuming, expensive, and distracting process.

Probate: Many young people own cars, have a checking or savings account, and have life insurance — assets that could end up in a probate court if inadequate planning, like only using the beneficiary form at the insurance company, is done. A basic trust may be all that’s necessary now for your children’s estate. Some people are concerned about planning “too early.” But, since revocable trusts can be updated as your child’s circumstances change, there’s never really a time that’s too early. By working with your children now, you’ll instill a great habit of being proactive when it comes to legal affairs while providing protection for your family along the way.

A simple way forward

Turning 18 isn’t just an opportunity to be able to vote or serve in the military. It’s also the first time individuals need to come in and have a conversation about estate planning.

As a parent, it’s an opportunity to help your child enter the world of adulthood and maturity. It also presents a unique opportunity for families to work together toward a common goal and can serve as a bond-strengthening experience for parents and children alike.

Here are some of the preliminary documents we can use to lay the foundation of your children’s estate plans:

Asset inventory: Asset inventories are a great way to get the ball rolling for those brand new to estate planning. Include assets like insurance policies, valuable or meaningful personal property or heirlooms, savings accounts, real estate, investments, and retirement plans.

Basic will: Wills contain instructions for the management and distribution of assets after death. However, since wills must go through probate, they are usually not a great planning tool for most people.

Living will: This document records the individual’s wishes in the event of terminal incapacity.

Revocable trust: A revocable living trust is a great way to keep an individual’s assets out of reach from potential court interference. And since they are revocable, these trusts can be altered as often as necessary throughout the course of one’s life.

Financial power of attorney: A financial power of attorney is the document used to appoint a person to handle the individual’s financial affairs.

Healthcare power of attorney: This type of power of attorney covers medical decision-making that could impact an individual’s health and lifestyle if they become unable to make those decisions themselves due to mental or physical impairment. In concert with a revocable trust, a financial power of attorney and healthcare power of attorney can provide a powerful plan for incapacity that sometimes strikes younger people (like the well-known case of Terri Schiavo, who became legally incapacitated in her late 20s).

Now is the right time to act

Estate planning for young adults doesn’t need to be prohibitively expensive or time-consuming. I would welcome the opportunity to work with you to build a comprehensive plan so you and your children can get back to the business of being in such an exciting part of life. We can work together to keep your children and family fully protected, no matter what life brings their way.

If you are preparing to send your son or daughter off to college to pursue higher education, you may be wondering how their first semester of school will go. During this exciting new chapter in your family’s life, the last thing you may be thinking about is estate planning for your college-aged child. While your child may not have any assets (yet), once he or she turns 18, your child is considered an adult in the eyes of the law. Before your kids go away, have a frank conversation with them about how much information — including grades, finances, health records — you will be able to access.

Mid-July Deadline for Better Pricing on Long Term Care Insurance

I ask all of my clients to conduct a full insurance audit. Do they have adequate casualty insurance? Did they tell their agent or broker about their new kitchen or pit bull or baby? Are they relying on employment benefits as their primary source of disability and life insurance?

And all of my clients, regardless of age, are given information about long term care insurance (LTCI).

When I met Lee Abel, she told me the story of her first encounter with someone needing long term care. She was a young girl riding her bike in the neighborhood and saw an elderly man in a dark suit and slippers shuffling down the middle of the street. As she got closer he pleaded with her, “Do you know who I am, do you know where I live?”. She did not, but that encounter never left her. I tell this story because Lee understands the challenges of aging and is a strong proponent of preparing well in advance for future long-term care needs.

Lee is an educator and an independent long term care insurance advisor and works with a variety of companies and products to find the right match for each individual.

Lee recently alerted me that a trusted LTCI carrier is having a substantial rate increase in 3 weeks on new applicants. Now is an excellent time to look at this unique hybrid plan, protect your family, and save money. With lifetime long term care benefits for one or two people, a death benefit, and premiums that cannot be raised in the future, this is truly a smarter way to self-insure. Unlike regular long term care insurance, there will always be a benefit provided, either a tax-free long term care benefit, a tax-free death benefit, or both. Now is the time, hop off the fence, get the facts, and understand for yourself if this policy can benefit you and your family.

Whether considering for yourself or your parents, long term care insurance can be an excellent component of risk mitigation, tax planning, and peace of mind.

Talk with Lee. Check out her website and discover if you are connected with her on LinkedIn.

Don’t Shy Away From Estate Planning – Estate Planning is for Everyone

The time is now: Especially during the pandemic when travel is limited and access to a loved one in a medical facility is restricted, estate planning is critical. It starts with an advance health care directive that can be obtained from the doctor or by a simple Google search. Without an advance health care directive, how will the people you love have the authority they need, and the instructions they will crave, to care for you?

It doesn’t matter what you have, it is about who you love: Estate planning is not always about money and usually those with less have more reason to get a plan in place. A failure to plan may mean that loved ones will be tied up in the court system wasting money seeking permission to take care of you or seeking permission and instruction on the distribution of your assets.

Money can’t get in the way: If you truly cannot afford an attorney (and please only work with an attorney who dedicates their practice to estate planning, not a lawyer who thinks it is an easy “profit center” for the law practice,) there are options for low-cost estate planning:
First, the state of California provides statutory forms for advance health care, durable power of attorney, and statutory wills. While these are not always the ideal solution, they are better than California’s default estate plan of (1) conservatorship, (2) distribution of your assets according to the “table of consanguinity”, according to the wishes of a judge who does not know you and (3) the placement of minor children where it is necessary and convenient.
Next: there are many terrific low-cost solutions for estate planning in the Bay Area.

Open Door Legal in San Francisco is the country’s first system of universal access to legal help.

HERA (Housing and Economic Rights Advocates) Their website says it all: “The is a racial and gender wealth gap in our country. HERA provides full service estate planning services on a sliding scale to help you keep what you have and protect yourself and family.”

The Bay Area Legal Incubator in Oakland is a community of solo attorneys dedicated to providing affordable legal services and promoting social justice. BALI provides lawyers with the support they need to start a successful solo practice, and in exchange, the lawyers provide access to legal services at lower costs, often on a sliding scale.

Five Considerations When Selecting a Guardian for Your Children

There is no question that having children changes everything – and estate planning is no exception. If you and your spouse pass away or become legally incapacitated, and arrangements were never made in the event of such an emergency, your minor child or children will have to be placed with a new family. Not surprisingly, such a drastic change can be a disruptive process for minor children – even if they are placed with members of your family. If you choose a guardian for your child in your will or other estate plan documents this difficult time can go much more smoothly.

Who Makes a Good Guardian?

A guardian for your minor child “steps into” your shoes in the event you can no longer care for him or her. No one wants this to happen, but when a parent becomes incapacitated or dies, the minor child left behind will need care. Because a guardian plays such an important role in your family’s life, there are several factors to consider when choosing someone to take on this role:

  1. Shared values. It is best to choose someone who has a common level of religious belief. For example, if you are not the religious type you may have objections to someone who would expect your child to join and regularly attend church.
  2. Parenting style. Whether you run a tight ship at home or prefer a laissez-faire approach to raising children, choosing someone who will continue in your style is likely the best fit.
  3. Involvement. Someone who travels all the time will not be able to regularly show up to your kids’ soccer games, gymnastics meets, band concerts, and live theater performances – an important part of being a guardian to your children.
  4. Energy level. Having the stamina to be able to keep up with your child – especially during the younger years – is an important factor.
  5. Other children. While a potential guardian who already has children should not be a deal-breaker, you should consider how adding more children into the family will affect the dynamic, particularly when it comes to the ages of the kids. 

Other Factors to Consider

In the same manner that you can choose different individuals to manage the estate’s finances and your minor children’s day-to-day needs, you can also choose more than one guardian for your kids. You may want to assign one guardian per child, depending on your family’s circumstances. That being said, setting up guardianship this way may result in your children being separated from one another, which is usually not a good outcome. Choosing someone who has the resources to care for your children – even if you have left money behind for their care – should also be a factor to consider. Finally, choosing someone who is young enough to be able to care for your child through his or her adulthood, as well as someone who is in good enough health to withstand the challenges of raising a child, are important factors that should be taken into account.

Once you have made a decision on who will be your child’s guardian, contact me. We can draft the documents you need in order to make this legally binding, as well as create an estate plan that suits your family’s needs and will protect your loved ones in the event you are no longer able to do so yourself.

Common Misconceptions About Marital Trust Assets

Estate planning is complicated. California’s community property laws are complicated. It is easy to get confused because the rule is often contrary to what common sense indicates.

Generally, every penny you earn from labor during marriage is a shared penny. Assets you had before you married, inheritance and gifts you receive while married, and certain personal injury awards received during marriage are separate property.

Many believe that keeping their wages in a separate bank account means that they have separate property. Without a pre or post-nuptial agreement, they do not. Many believe that if they owned real estate before marriage that it remains theirs, even if they are using marital assets to pay down the mortgage. It is complicated.

Also important is understanding the effect of transferring an asset to a marital trust. A marital trust provides tax planning flexibility for a surviving spouse (if it is drafted properly) and avoids probate. It does not have any effect on the “characterization” of a property – how a court would allocate that asset in the event of divorce or a post-death dispute.

Common Misconceptions About Marital Trusts  

Many believe that transferring an asset to a joint revocable trust magically transforms each asset transferred into a marital asset. This is incorrect. Transferring an asset to a trust avoids probate, maintains privacy, provides control from the grave over how those assets will be distributed, and may provide asset protection for beneficiaries of irrevocable trusts eventually created after a grantor’s (trust creator’s) death.

Transferring assets to a marital trust does not mean they automatically become marital assets.

Here is some of the language contained in my revocable trusts.

(A) Community Property

Any community property transferred to the trust will retain its character as community property during our lives, to the same extent as if it had not been transferred to the trust.

(B) Separate Property

Separate property transferred to the trust will retain its character as separate property. The separate property of either of us, including the property’s income and proceeds from the property’s sale or exchange, will remain separate property. Each of us has the unrestricted right to remove all or any part of our separate property at any time.

(C) Marital Property Agreement Controls

If we have entered into or in the future enter into a marital property agreement, the terms of that agreement will control the characterization of property titled in the name of the trust.

Sometimes, clients are happy to have one trust that disposes of both their separate and their community property. Some clients prefer to have separate share trusts for their separate assets and prefer to work with a different attorney so that they do not need to discuss their preferences for trustees and beneficiaries.

How Do You Support Your Divorcing Clients?

Divorce is a hot topic lately. As couples emerged from quarantine in China in March, divorce rates spiked – and there no reason to assume the results will be any different here in California.

Assisting a divorcing client means assembling the right team of professionals. It is critical to assist a divorcing client in risk mitigation. They need individual umbrella insurance. They likely need a CDFA, a new financial advisor, or a money coach. They may need a realtor who specializes in divorcing clients. They absolutely and without a doubt need an estate planning attorney.

Generally speaking, before a divorce is filed, the parties can revoke their marital trust – following the rules and procedures set out in that particular trust. But once a divorce petition is filed with the court, the parties cannot revoke or amend that trust, they cannot take any assets out of a marital trust still in existence without a court order.

None of this means that a new estate plan cannot be created. A client must create a new durable power of attorney, advance health care directive, and guardianship nomination form. They can also create a new will and an individual trust for the distribution of their assets and the protection of their loved ones, specifically excluding their soon-to-be ex from control and inheritance.

How can we, as professionals, assist a divorcing client? By helping them spot the issues and act on them.

Considerations for a Successful Transition to Single Life for a Client

1.  Incapacity planning is critical. All of my clients know the story of Khloe Kardashian and Lamar Odom. Their divorce had not yet been finalized when he was temporarily incapacitated and in a coma. It appears that Khloe was still his health care proxy, and likely his agent under a durable power of attorney and the co-trustee of their marital trust. Would your client want their soon-to-be ex-spouse in charge of deciding whether they live or die and contemplating which outcome benefits them most? It is critical to create a new advance health care directive and durable power of attorney that gives someone they trust authority and instructions and specifically excludes their spouse from acting on their behalf in any matter.

2.  Create a new revocable trust. There is nothing stopping a divorcing client from creating a new revocable trust, and this is urgent if the client has young children or others who rely on the client for support. While one cannot transfer marital assets to an individual trust without a court order, this does not mean a client is helpless. A client might be able to use their separate property assets, such as post-separation wages, to purchase a life insurance policy to fund their individual trust for the benefit of their children. The individual trust should also list all of the assets a client believes they will obtain in the divorce on the schedules of the trust. Should the client pass away before or after the divorce is final but before they are able to transfer those assets to the trust, then a good estate planning attorney can petition the court on their behalf.

3.  The Importance of Independent Counsel. The attorney preparing an individual trust should NOT be the same attorney preparing the soon-to-be ex-spouse’s individual trust. I am aware that some attorneys do this (typically when they drafted the original marital trust). They ask their clients to sign conflict waivers. However, an estate planning attorney should not simply draft a document. An estate planning attorney is a counselor and an advocate for their client and must be wholly loyal to their client. If divorcing clients have the same estate planning lawyer, then how could that lawyer possibly be completely loyal to either client when. by definition, the clients are in conflict? For example, how could an estate planning attorney, considering the risk to their client should their ex pass away while support payments were still due, recommend to spouse A to have their family law attorney demand control over a substantial life insurance policy over spouse B (and have B pay for it) if that attorney also represents spouse B?

4.  Real Estate: Severing Joint Tenancies, Working with Realtors, Mortgage Considerations:

  • If a client holds title to real estate as joint tenants, if they die before the divorce is finalized then their soon-to-be ex will inherit the client’s half of the property. A client should speak with their family law attorney about the possibility of “severing” a joint tenancy, and with an estate planning attorney about creating an estate plan that will keep their share of the property out of their ex-spouse’s hands.
  • If the client anticipates that the real estate will be sold as part of the divorce decree, then it is also critical to ensure that they work with a realtor who understands the ethics and special circumstances of working with divorcing clients – such as restraining orders, sabotaging a sale, and wasting an asset.
  • If the client thinks they will be in the market for a new home it is critical that they work with an experienced mortgage broker with a proven track record of working with divorcing clients. They can provide excellent insight to a divorce attorney and a CDFA on how to structure a settlement to best present a client to a lender.

5.  Consider Insurance.  Your client is about to be single, which means they will be living in a one salary home. If they were unable to work, how would they cope? It is critical to investigate whether disability insurance is affordable and practical. Also, it is likely that their auto, home/renters, and umbrella policies are held jointly with the spouse. It is time to call an agent and obtain policies on the client’s own behalf to mitigate risk and protect their assets.

Do It Now: Name a Guardian for Your Child(ren)

We know it’s hard. Thinking about someone else raising your children can stop you in your tracks. It feels crushing and too horrific to consider. But you must. If you don’t, a stranger will determine who raises your children if something happens to you – your children’s guardian could be a relative you despise or even a stranger you’ve never met.

No one will ever be you or parent exactly like you, but more than likely, there is someone you know that could do a decent job providing for your children’s general welfare, education, and medical needs if you are no longer available to do so. Parents with minor children need to name someone to raise them (a guardian) in the event both parents should die before the child becomes an adult. While the likelihood of that actually happening is slim, the consequences of not naming a guardian are more than intense.

If no guardian is named in your will, a judge – a stranger who does not know you, your child, or your relatives and friends – will decide who will raise your child. Anyone can ask to be considered, and the judge will select the person he or she deems most appropriate. Families tend to fight over children, especially if there’s money involved – and worse – no one may be willing to take your child; if that happens, the judge will place your child in foster care. On the other hand, if you name a guardian, the judge will likely support your choice.

How to Choose a Guardian

Your children’s guardian can be a relative or friend. Here are the factors our clients have considered when selecting guardians (and backup guardians). 

  • How well the children and potential guardian know and enjoy each other
  • Parenting style, moral values, educational level, health practices, religious/spiritual beliefs
  • Location – if the guardian lives far away, your children would have to move from a familiar school, friends, and neighborhood
  • The age and health of the guardian-candidates:
  • Grandparents may have the time, but they may or may not have the energy to keep up with a toddler or teenager.
  • An older guardian may become ill and/or even die before a child is grown, so there would be a double loss.
  • A younger guardian, especially a sibling, may be concentrating on finishing college or starting a career.
  • Emotional preparedness:
    • Someone who is single or who doesn’t want children may resent having to care for your children.
  • Someone with a houseful of their own children may or may not want more around.

WARNING: Serving as guardian and raising your children is a big deal; don’t spring such a responsibility on anyone. Ask your top candidates if they would be willing to serve, and name at least one alternate in case the first choice becomes unable to serve.

Who’s in Charge of the Money

Raising your children should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. You will need to provide enough money (from assets and/or life insurance) to provide for your children. Some parents also earmark funds to help the guardian buy a larger car or add to their existing home, so there’s plenty of room for extra children.

Factors to consider:

  • Naming a separate person to handle the money can be a good idea. That person would be the trustee in charge of the assets, but not the guardian of the children, responsible for the day-to-day raising of the children.
  • However, having the same person raise the children and handle the money can make things simpler because the guardian would not have to ask someone else for money.
  • But the best person to raise the children may not be the best person to handle the money and it may be tempting for them to use this money for their own purposes.

Let’s Continue this Conversation

I know it’s not easy, but don’t let that stop you. I’m happy to talk this through with you and legally document your wishes. Know that you can change your mind and select a different guardian anytime you’d like. The chances of needing the guardian to actually step in are usually slim (I always hope this is the one nomination that’s never actually needed); but, you’re a parent and your job is to provide for and protect your children, so let’s do this. Contact me now for an appointment and we’ll get your children protected.

What is the Difference Between Guardians and Trustees?

Should Your Child’s Guardian and Trustee Be the Same Person?

If you have overheard any discussion about estate planning, you have likely heard the words “guardian” or “trustee” tossed around in the conversation. When it comes to estate planning, who will be ultimately in charge of your minor child is an important decision that requires the consideration of many factors. Although there is no substitute for you as a parent, a guardian is essentially someone who steps in as a parent, assuming the parental role and raising the child through adulthood. A trustee, on the other hand, is in charge of managing the financial legacy that has been left behind for the minor. As a parent, you need to take into account the characteristics needed for each role.

Who Makes a Good Guardian?

When choosing a guardian, the top factor to consider is who is the best person that will love and raise your child in a manner that you would. This would include religious beliefs, parenting style, interest in extracurricular activities, energy level, and whether or not he or she has children already. Keep in mind that a guardian will provide day-to-day love, care, and support for your child. While the guardian you choose may be great with your children, he or she may not be great with money. For this reason, it may make sense to place the financial management of your minor child’s funds in the hands of someone else.

Who Makes a Good Trustee?

Not surprisingly, when choosing a trustee the most important characteristic is that he or she is great with finances. Specifically, the trustee must be able to manage the funds in accordance with your intent and instructions that are left in your trust. Consider whether he or she will honor your wishes. Likewise, should you choose to grant your successor trustee discretion in making financial decisions regarding the management of funds left behind you should ensure the individual’s decisions will be aligned with your intent. In short, you want to choose a successor trustee who will act in your minor child’s best interest within the limits you have set forth in your estate plan documents. If you choose two different people for the role of guardian and trustee, make sure to consider how the two get along as they will likely have to work together throughout your minor’s childhood and possibly into adulthood.

Seek Help to Make a Decision

While estate planning can be daunting, it does not have to be. Contact a knowledgeable estate planning attorney to help guide you through this process. We can explain your options and advise you on the best plan that will follow your wishes while at the same time meeting your family’s needs.