Do You Have A Will?

If the answer is “no,” a recent survey shows that you are not alone.  Only 4 in 10 American adults have a will or trust in place.  While older Americans are more likely to have a plan in place (81 percent of those age 72 or older and 58 percent of boomers), younger Americans, including those at ages of having minor children, are much less likely to have a plan.  A “a whopping 78 percent of millennials (ages 18-36) and 64 percent of Generation Xers (ages 37-52) do not have a will.”  See this AARP article for more information about the survey results.

 

Health Care Representatives for Minor Children

It’s the stuff of parents’ worst anxieties when headed out of town for business or vacation, leaving their minor children at home in the care of a friend of family — their child is injured or becomes sick in their absence. Imagine, leaving with your spouse on a long-planned vacation, many states away or even out of country, leaving your children safely in the care of beloved grandparents. But, life happens, and one child breaks his arm at baseball practice, while you are thousands of miles away and cannot immediately return home. Grandma takes your son to the hospital, where all but necessary emergency treatment is denied because Grandma does not have legal authority to grant treatment on behalf of your minor child. You call the hospital in attempt to authorize treatment, but unfortunately, the hospital will not accept your verbal authorization, requiring a written authorization, properly executed and witnessed. After many phone calls, a faxed authorization form, and locating witnesses in your hotel lobby, hours after the accident you occurred, you finally get the documentation required by the hospital to proceed with treating your son. Unfortunately, I have heard first-hand stories of a real life occurrences of this very scenario.

This anxiety producing scenario can be avoided with advanced planning. Execute an Appointment of Health Care Representative for Minors, authorizing a trusted family member or care giver to make health care decisions in the event that you can not make these decisions for your minor child. I recommend that parents with minor children consider including preparation of an Appointment of Health Care Representative for Minors as part of their estate planning package.

My Child is 18 Years Old! Estate Planning for Young Adults

Having a child attain the age of 18 brings with it the legal age of majority and autonomy in her decisionmaking.  One aspect of this age of “adulthood” that may not be readily apparent to both the now-adult child and her parents is the immediate loss of the parents’ ability to serve as a decisionmaker.  Simply stated, as the “child” is now an adult, the young adults’ parents no longer have access to and ability to serve as a financial or medical decisionmaker for their child.  As this article explains, this can have serious implications in the case of an adult child who becomes incapacitated for any reason — illness or accident — even of a temporary nature.  Well planned parents and their adult children should consider getting, at a minimum, incapacity planning documents in place, which includes an Appointment of Health Care Representative and Power of Attorney document.

Estate Planning for Parents of Young Children

This is a topic of much passion for me.  Estate planning is a necessary protection for all parents with minor children.  Yet, national surveys reveal that less than 40 percent of Americans with children under the age of 18 have their estate planning documents in place.  (LexisNexis 2011 EZLaw Survey).

As a parent with young children myself, I understand that it may seem impossible to find the time to meet with a lawyer and get estate planning documents in place.  Life is busy!  Estate planning often seems like something that can wait to another, less hectic time.  Or, some parents, especially those with young children and just beginning their careers, feel that they have not yet accumulated sufficient assets to warrant the need for such a plan.  And, if I’m being honest, although I personally find estate planning to be a topic of great interest, most people do not particularly enjoy the topic or find it unsettling.  Who wants to talk about planning for death?

Estate planning is necessary!  It is as important as the other basic protections we have in place for our children and loved ones.  Here’s why:

1. Avoiding Intestate Distribution.  You likely do not want your Estate distributed according to the “intestate” or default distribution plans put in place by Indiana Probate law.

2.  Naming a Guardian For Minor Children.  You will want to name an individual(s) to care for your children in the event that both parents should pass.  In the absence of a written appointment by the minor’s parents (through a Last Will & Testament or other document), the Court will select a Guardian, most likely choosing among surviving family members who seek the appointment, and without the benefit of instruction from the child’s parents.

3.  Putting in Place a Plan to Manage Your Children’s Inheritance.  If something should happen to you (and your spouse) while your children are minors, you will want to put into place a trust to manage and distribute your children’s inheritance.  Without such a plan, the Court will appoint a custodian to manage the money while your child is a minor and, in most cases, your child will receive her inheritance outright at the age of 18.  Planning with trusts will allow you to put in place the management of your child’s inheritance until ages you determine are appropriate for distributions, holding it in trust beyond the age of 18.  In addition to managing and investing the inheritance funds, the trustee will use the inheritance to provide for your child’s care, support and education until the ages of distribution.

4. Planning with Beneficiary Designations.  An estate planning lawyer will help you set up your beneficiary designations to fully take advantage of trusts you put in place for the protection of your minor children.  Without such properly worded designations, your children will receive assets such as life insurance, 401(k)s, and IRAs, outright at the age of 18, and not protected by trust.

5.  Planning for Incapacity.  In addition to protecting your family in the event of death, an estate plan should also include incapacity planning documents, including a General Durable Power of Attorney, Living Will, and Appointment of Health Care Representative.  If you should become disabled or incapacitated, these documents will be essential to the continued function of your family and eliminate the public and potentially expensive and time-consuming process of a guardianship.

6.  Other Concerns.  A solid estate plan (and counsel of an estate planning attorney) affords other protections.  Additional topics that may be relevant to you and your family include Federal Estate Tax, avoidance of probate, second (or subsequent) marriages, blended families, children with disabilities requiring long-term care, and capital gains/income tax planning.