Do you have minor children? Planning for the children involves multiple considerations.
1. Who do you want to raise your children if you are gone?
You need to name a “guardian” who will take care of your children in the event of your demise. You should name an alternate guardian, in case your first choice (usually your spouse) is unable to become one. This designation can only be done through a will.
You don’t want your children or your family to go through a custody battle. Stating your wishes clearly in a Will eliminates the courtroom drama.
2. Who do you want to manage the children’s assets while they are minor?
You need to name someone who will take care of the child’s assets while they are minor and potentially afterwards. It can be the same person as the “guardian” but it can also be a different person. It will be either a “custodian” or a “trustee”, depending on the method used to leave the money.
You can decide whether or not there will be only one custodian or several (depending on how much control you want one person to have). You should not name your spouse as the sole custodian of the minor children’s money.
3. How do you want to split the money between your spouse and your children?
A very common misconception is that when a spouse dies, 100% of his money goes to the surviving spouse. In New York State, this is simply not correct, if there are children involved. Without a will expressing wishes to the contrary, the first $50,000 belong to the surviving spouse, and the remaining assets are split 50 /50 between the spouse and the children.
Do you like this default distribution? If you do not, then you need to write a will, expressing your desires about the percentage of your assets going to the spouse and the percentage going to your children.
4. When do you want your children to receive the money?
Without a will expressing wishes to the contrary, the children will receive all of their money at the time they turn 18 years old. Do you like this default distribution? Some people think that 18 is too young to receive a large inheritance. If you agree, then you need to decide when they children should receive the money and who will manage their assets in the meantime.
You can create a trust for the benefit of your children. The trust will specify at what age and under what circumstances the money will be distributed. You can decide who will manage the money and determine the distribution. You can decide in what proportion the money will be distributed. This trust can be created either during your life or written into a Will, to come into effect only after your demise.
Do not think that you need to have to be rich to have a trust. A $100,000 inheritance placed into the hands of an 18 year old without any limitations or control may spell disaster. With proper estate planning, the same money managed by a responsible friend or a relative can be used to pay for college education or vocational training, establishing a child’s future.
5. Will the children have sufficient money to live on if something happens to you?
Even if you establish a guardian for your children, consider whether or not that guardian will have sufficient funds to raise your family. Will there be sufficient money for college, summer camps, and extracurricular activities?
If you are unsure of the answer, consider buying life insurance. The proceeds will ensure that your children are provided for until they are old enough to support themselves.
6. Do you have a child with Special Needs? There are many steps you should take when planning for this child’s future.
- If the child has capacity to execute legal documents, then as soon as he turns 18, he should execute advance directives.
- If the child does not have capacity, then prior to the child turning 18, you will need to initiate a guardianship proceeding.
- Depending on the disability, either an Article 17A or an Article 81 guardianship may be appropriate.
- Prior to the child turning 18, you need to register with OPWDD (New York State Office for People with Developmental Disabilities), in order to obtain continuing services, assistance with living and additional education after high school.
- You should consider establishing either a First Party Special Needs Trust or a Third Party Special Needs Trust, depending on your individual situation, in order not to jeopardize the child’s ability to receive government programs.
This article only offers general information. Each situation is unique. It is always helpful to talk to a specialized attorney, to figure out your various options and ramifications of actions. As every case has subtle differences, please do not use this article for legal advice. Only a signed engagement letter will create an attorney-client relationship.