We all procrastinate. However, when it comes to estate planning, and particularly drafting a Will, it seems to get worse. Many couples think they are too young to need a Will or any kind of estate planning. But, as I have discussed in earlier columns and this is driven home to me every time a client or former client is killed in an accident, no one is too young to consider some estate planning.
Another oversight by many couples is that they never seem to get around to having a Will prepared or they fail to make changes to an existing Will as their life circumstances change. Let me ask a question that might motivate you. If you were to die tomorrow or next week, what about the kids? Who would pick them up from daycare or school? Who would make sure they were fed, bathed, and had a place to stay?
Not choosing means that if your kids become orphaned, the courts will decide who gets to raise them. And a judge may not choose who you would. He or she might choose that awful Aunt Deville. If no one agrees to take the children, then they could land in foster care. If too many people want them, then there is going to be a nasty fight in court over who is to become the guardian.
If you have young children or children in the difficult teen years, you probably would prefer to find a guardian yourself, and there is no time like the present. So, in this week’s column I will give you some things to consider in making this choice.
Your choice will be made easier if you first list the qualities that matter most to you in a caregiver. More importantly perhaps, what qualities do you want in your children when they are grown? Think about what spiritual and moral values are important to you and that you would like to see in your children. Think about the guardians as role models and what practical skills you want them to have. Establishing a guardianship is very much like deciding what you are all about as parents.
You may find that you and your spouse differ on some of these qualities. This is fairly common. What spouses agree on everything? Sit down and combine your lists into a final list. Now you are ready to come up with a list of potential candidates and assess how well they match your list.
You should then ask the following questions:
• Is each candidate physically up to the challenge of raising your kids to adulthood?
• Do they live nearby and, if not, would it be too hard on your children to relocate?
• Are their finances and relationships stable?
• Do they already have kids?
Remember it is common for couples to argue about these things because you are dealing with such sensitive personal issues. But better the two of you arguing than your families fighting in court.
Often the hardest question is whether to choose a family member or someone outside the family as guardian of your children. You do not want to hurt anyone’s feelings, but must consider age, family size and the items mentioned above when making this choice.
Once you have made your decision, you should ask the person or persons you have chosen if they will accept the job. The people you name have the right to refuse, so you will want to discuss the matter with them before you set your arrangements in stone.
You may want to consider choosing a different person or bank as trustee of the estates (financial assets) of the children. Often the person you choose as guardian is a great caregiver, but does not want the burden of handling the finances; or, they may not be good with money. Perhaps another is great with financial planning, but clueless around kids.
Choosing a trustee can be a smart move regardless of the size of the estate. But the bigger the estate, the better it is to choose a trustee, because there is a greater potential for misuses of monies.
After you have selected your guardian, and maybe a trustee, you will need to make it official. This can only be done in a Will. After you have a Will, if your circumstances change, the needs of your children change, or the circumstances of the guardian and/or trustee change, you may need to revise your Will. You should consult with an attorney who is familiar with estate planning and can help you.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.