Where There’s a Will, There’s a Way

Of all the challenges that come with being a parent, perhaps one of the hardest to think about is what will happen to your children should something happen to you and your spouse.

While creating an end-of-life plan — also called an estate plan — for you and your family can seem morbid to many people, it’s an important step to take, particularly when minor children are involved. By talking to a lawyer who focuses on estate planning and getting the proper documents in place early, you can rest assured your kids will be taken care of and your assets will be distributed as you wish.

Your lawyer can advise you on the details of your estate plan. At a minimum, this may include:

  • a will, which will outline what happens to your possessions upon death and name guardianship for your children
  • a trust, which holds the assets you wish to leave to your children and names a trustee to manage the assets (not necessarily the guardian)
  • a healthcare directive, aka living will, which names someone who can make healthcare decisions for you if you’re unable to
  • a HIPAA waiver, which names who has rights to your healthcare information
  • guardianship nomination documents, which outline how you want your children to be cared for if you pass
  • final instructions for disposition of your body

Your Most Precious Assets

For parents, knowing that your children will be in a loving, caring home can seem like the most important decision of all. Many people assume that grandparents automatically assume guardianship if both parents pass and specific arrangements aren’t outlined in a will, but that isn’t always the case, says Katie Charleston, an Indianapolis-based attorney who focuses on estate planning. A judge will grant guardianship to a person who steps forward to care for your children — whether or not it’s someone you would choose. Should more than one person come forward, this could mean time spent in court and your children in the hands of child protective services. In order to ensure your children continue to live a happy, healthy life, take some time to talk to your spouse about your options.

“It’s not so much about who has the most money, who is geographically closest or family,” Charleston says. “You should think about who will raise your children with the values you want and take care of them as close to how you would.”

She also recommends discussing these wishes with the person you choose before you put it in writing, so that they are on board with the decision. Let them know of the expectations you have for their care and see if that’s something they are willing and able to follow through with. If they are agreeable, let them know who they should contact — most likely your lawyer — if something should happen to you.

Your lawyer will help you think through all the details regarding guardianship in order to ensure your desires are followed as smoothly as possible.

“My law firm makes sure kids are fully protected should something happen to the parents by including things like instructions to caregivers and temporary guardianship documents so there is no gap in care for minor children and they stay out of the system,” Charleston says, and you may want to talk to your lawyer about this, as well.

Unless official changes are made, the guardianship part of your will remains in effect until your children turn 18 and become legal adults.

Put It Into Action

Once you make the hard decisions that go into your estate plan, including guardianship of your children, executing it is fairly easy. With your lawyer, you will sign the will and other documents in front of two witnesses who will also include their signatures. Charleston advises keeping the document in a place that will be safe from flood or fire damage, such as a safe deposit box. Let the executor know where this is, because he or she will need the official document in hand in order to execute your plans.

It’s also a good idea to let those close to you know about your plans, particularly if they are named as guardians. “This makes it easier when the time comes to follow your wishes,” Charleston says.

Although it may be difficult to think about, putting your guardianship wishes in writing is one of the best gifts you can give your children and loved ones, helping them to avoid potential conflict and assuring them your legacy will continue on in a way that would have made you happy.

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