As parents, we only want what’s best for our kids. As a father of three, it’s hard to imagine my wife and I not being around to watch our children grow up. As an estate planning attorney, however, I wholeheartedly believe in having a plan in the event that should happen.
Two-thirds of American adults don’t have an estate plan, according to a 2022 survey by Caring.com. In my experience, one of the biggest reasons is a lack of knowledge on the importance of having a plan. New parents are often young enough that they’re not yet meeting with a financial advisor who can warn them of the consequences of forgoing an estate plan: their assets may not be used for the things they value, and their children may not be cared for by the people they trust most. New parents may also feel that an estate plan isn’t something they need in the short term, but instead a bridge they’ll cross far down the road. Not only that; the expense of a professionally created plan can seem intimidating.
Whatever the reason, parents of minor children should take the first step in educating themselves about what would happen to their children and their estate should they pass away. There are default rules that take effect in the state of Minnesota, and, absent a valid estate plan, a judge will choose who watches over the children with the help of these Minnesota statutes. If parents would like to keep these default rules in place, they may not need an estate plan. If these rules do not represent what the parents want, then it is very important to create a plan that will change these defaults.
Choosing a Guardian
Not surprisingly, the most important step is choosing a guardian for children under 18 years old if both parents could no longer provide care. Many people will name a grandparent, but I recommend keeping their age and the children’s age in mind. For example, I have a 1 year old, which would mean my parents would be caretakers into their 90s. For that reason, parents may want to consider people of their own generation, like siblings or family friends. Parents can also name backups if the first guardians named are unable or unwilling to take on the caretaker role.
Setting up Trusts
The next step is to set up trusts to manage money that will be passed down to the children. Sometimes, parents will want to leave all of their money to the guardian with the hope that the guardian will have resources to provide care. I never recommend my clients elect the guardian to receive the money directly because there are no controls in place. The guardian could spend the money at his or her discretion or lose it if they get into financial issues.
Instead, parents can establish a trust for their children, which is a legal entity that can hold their assets for specific purposes. This allows for more control; instead of children inheriting money automatically at age 18, parents can set up a trust so they get inheritance in increments, perhaps one-third at age 25, 30 and 35. The children have the ability to use the inheritance for health, education and a few other necessary expenses at any age, but spreading out the discretionary spending will help the children use the money wisely. The money will be managed by a trusted person, called a “trustee,” chosen by the parents in their estate plan.
Parents have the ability to amend these trusts as their situations change. For example, if the kids grow up to become financially savvy young adults and the parents want them to get their inheritance sooner, they can make that change. If both parents live until their children are over the designated age, the age-requirement is skipped without consequences.
These types of trusts can be created right in your will document, but be warned: will documents are subject to probate proceedings, which can be a long and sometimes expensive process and will certainly delay the availability of these resources. If this is a concern, a revocable trust is another option for parents. Unlike a will, a properly created revocable trust is not subject to the probate process. I like to describe a revocable trust as a legal “container” that is created with the help of an attorney. The parents place their assets into the “container,” and they are able to manage their assets throughout their lifetime. When both parents pass away, the trustee takes over management of the “container” on behalf of the trust’s beneficiaries. This process helps avoid long legal disputes, additional fees, and emotional stress among family members.
DIY vs. Professional
The do-it-yourselfers may turn to online templates to create their own estate planning documents, but oftentimes they make disastrous mistakes because they don’t understand the specifics of what they are doing. Estate planning is not “one size fits all,” so it’s important to make sure your plans reflect what is important to you for the care of your children and the values you hold for your family. An estate planning professional acts as your guide to making the right decisions for your life with clarity and confidence.
I understand estate planning can seem like a confusing and overwhelming process. It’s easy to put off until another day. But with professional guidance and a thorough plan, you will have peace of mind for the rest of your life. I would love to connect with any parents who have questions about the process.