What is the Difference Between Custody and Guardianship?

What is the Difference Between Custody and Guardianship?

Custody and guardianship both allow someone else to care for a minor child. The main difference is how they’re set up. Keep reading to find out more.

What is Custody?

Custody is a family court order that allows someone to care for a minor child. One of the most common uses of custody is in divorce cases where the court will decide if the parents share joint custody, one will have primary custody, or, in rare cases, only one will have custody. A parent may also lose custody in cases of abuse or neglect.

What is Guardianship?

Guardianship comes from the probate court rather than family court. The guardian has similar powers to a parent or another person with custody. Guardianship may be used when both parents pass away or when both parents don’t have the physical or mental capacity to care for their child any longer.

Guardianship can also be used in the case of an adult who due to illness, injury, or disability is unable to care for himself or herself.

What’s the Difference Between Joint and Physical Custody and Guardianship?

Custody arrangements are often divided into physical and legal custody. Physical custody means a parent has the right to spend time with a child such as during visitation periods. Legal custody means a parent has the authority to make decisions over things like healthcare and education. With the trend towards awarding joint custody, most parents share both physical and legal custody, but this may not always be the same.

A guardianship is a legal arrangement, although the guardian often will also take in the child physically. If the guardianship is temporary, such as while a parent is in the hospital or jail, the guardian may be limited to making day-to-day decisions for the child during that time rather than having the same authority for more permanent decisions as a parent or someone with permanent custody would.

How Long Do Custody and Guardianship Arrangements Last?

Custody arrangements usually last until the age of majority. The parents or another interested party may request a modification of custody if there has been a significant change in circumstances.

Guardianships can also be permanent until the age of majority, but they may also be temporary. For example, a parent who is serving overseas or going in for a surgery may appoint a temporary guardian.

Can There Be Both Custody and Guardianship?

In most situations, guardianship is only used when both parents are unable to care for a child. If there is joint custody and something happens to one parent, the other parent will usually take on full custody at least until the other parent recovers. If something happens to both parents or the other parent is temporarily or permanently too far away to take on a greater role, the court may appoint a guardian. If either parent becomes able to take on full custody, the court would usually end the guardianship.

How Do Custody and Guardianship Start?

Custody often starts as one of the decisions a judge makes in a divorce case. The judge has the final say and decides what’s in the best interests of the child. The parents can ask for a certain arrangement, but even if both parents are in complete agreement, the judge may opt for a different course of action.

Custody can also arise out of an abuse or neglect case. Terminating or reducing parental rights is a serious decision, and the court will give anyone who such allegations have been made against the chance to answer the allegations. However, custody cases are not criminal trials, and the judge’s ultimate role is to further the best interests of the child.

Guardianship is also overseen by the court, but the process is slightly different. If a parent who is currently of sound mind and able to care for his or her child needs to appoint a temporary guardian, the court will almost always approve that choice. Parents can also nominate a potential guardian in case they are ever incapacitated. This choice is not automatic, since the court will want to check that the nominated guardian is able to currently serve in the role when needed, but the judge gives the nomination great weight. In cases where someone becomes incapacitated without a nominated guardian, the court will appoint a guardian after listening to the recommendations of family members and other interested parties.

How is Adoption Different Than Guardianship?

Adoption can be similar to permanent guardianship in many practical daily aspects, but there are important legal differences. First, if the parents are still living, adoption permanently ends their parental rights, while guardianship does not. A living parent who appoints a guardian may still have a legal obligation to provide financial support for their child, while an adopted child is the sole responsibility of the adopting parents. Finally, the child doesn’t have any automatic rights to inherit from a guardian but do from adoptive parents the same as a biological child.

Because of the permanence of adoption, it would generally only be part of your estate plan in case you pass away. For situations where there is a chance of recovery, you would want to use a guardianship.

Can Divorced Parents Nominate a Guardian?

Since the courts will default to another parent with custody before a guardian, nominating a guardian when the parents are divorced is more complicated. If both parents can agree to nominate the same guardian, such as a godparent, the court would honor that nomination if something happened to both parents. If each parent nominated a different guardian in their estate planning documents, it would first depend on which parent last had custody. For example, if something happened to the mother, the father took custody, and then something happened to the father, the court would start with the guardian the father nominated. However, both sides of the family would be able to appear in court and ask for a different guardian, and the court would act in the best interests of the child.

What About Grandparents?

In most situations, grandparents don’t have automatic legal rights to care for their grandchildren. This doesn’t mean the children can’t spend a week with grandma and grandpa, but grandparents don’t have the authority to make important legal decisions. If something happened to the parents, schools, doctors, and others couldn’t automatically treat the grandparents as guardians.

Of course, in many families, having the grandparents step in would be best for everyone. Judges understand this and favor awarding custody or guardianship in the right situations. You just need to make the appropriate legal arrangements rather than assuming the grandparents could automatically step in.

How Do You Terminate Custody or Guardianship?

In most custody cases, the more appropriate course of action is to request a modification of custody due to a significant change in circumstances. However, the other parent or another person may petition for termination of custody in cases of abuse or neglect.

Where guardianship is voluntary, such as a parent appointing a temporary guardian while they are away, the parent can terminate the guardianship at virtually any time for virtually any reason. Where the parent is incapacitated, members of the family may petition the court stating why the current guardian isn’t fulfilling his or her duties or why a new guardian would be better for the child.

What Happens if a Guardian Dies?

If a guardian dies or is otherwise unable to fulfill his or her duties, the court will obviously end the guardianship. However, the guardian is not treated as a parent for the purposes of appointing a new guardian. Instead of the guardian nominating a successor guardian, the court will look back to see if the parent nominated an alternate guardian. Otherwise, the judge will again listen to any recommendations from family members in trying to determine the best interests of the child.

Do You Need an Attorney?

It can be a good idea to have an attorney help you to properly establish a guardianship to care for your child should the unthinkable happen to you. To learn more about what you need to do, talk to one of the experienced estate planning attorneys at Lilac City Law. We’re conveniently located in Spokane and serve the surrounding communities.

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Disinheriting a Child and Other Considerations of a Last Will and Testament

Disinheriting a Child and Other Considerations of a Last Will and Testament

Leaving your children out of your will is not a decision that is taken lightly. But sometimes there are considerations that you need to make that make it the more prudent decision to leave them out of your will. If you decide to disinherit children, it is something you should do as soon as you make the final decision, which will give them less of a chance to contest it and end up with an inheritance you didn’t want them to receive. 

Things You Should Consider Before Choosing to Disinherit 

You should never use disinheritance as a tool for controlling your child’s behavior. Trying to control a person or situation with money can often lead to bad feelings and bad blood. While there are valid reasons for wanting to disinherit your child, you might want to look at the other possible options first to see if they could be the right fit before choosing to cut your child out completely. Other options you might want to consider before disinheriting your child include:

Controlling Their Inheritance Through the Use of a Living Trust

If you want to allow your child to have money but control how and when they get it, or what they use it for to ensure it is used responsibly, a living trust may be the better option. You can set up a trust to divvy out the money in small amounts over a period of time or have the funds directly sent to pay bills. You will need to provide the trustee with precise instructions on how, when, or for what the distributions can be made. This may be the ideal option for those who are considering disinheriting for fear of the money being wasted. These trusts can even include milestone incentives such as payments for going to college. 

Providing the Power of Appointment to Someone Else

You can also choose to provide a trustee with the power of appointment, which can allow your child to re-inherit if they meet certain terms or conditions. This means that the child will have the right to earn their portion of the estate back as long as the trustee of a lifetime trust is given the instruction to allow this to happen. 

How to Write Your Children Out of Your Last Will and Testament

Following a few simple steps can make disinheriting your child a little easier and help provide the best chance for your last wishes to be followed. You will need to:

1. Create a Will

While this sounds simple, many people may communicate their last wishes to family members, but not put the information formally down in writing. Failing to have a will in place means that your estate will pass through intestate succession upon your death. When this occurs, the estate will most likely split up between a living spouse and children. Once you have drafted a will, make sure that it is witnessed and notarized. Then place it in a safe place where the person in charge of executing your estate will have access to it. 

2. Indicate the Deliberate Disinheritance of the Specific Child or Children

Just not mentioning the child can leave the will open for interpretation and subject to being contested. The disinherited child could claim you forgot to put them in, and since they were omitted and not explicitly listed as being disinherited, it may give them a chance in the court system. Acknowledge the specific child or children by their name in your will and add a statement saying that for certain reasons, you have decided to make no provision for them or their descendants in your will. This will provide the support that you had intentionally meant to leave them out of the estate split. 

There are two things that you will need to consider when wording this in your will. First, leave the reason vague, such as “for reasons known to me.” If you state a reason, you open the door for the child to say that that reason is no longer valid. For example, if you said the disinheritance is because they have finances to meet their needs, they could prove that they no longer have the money to keep themselves financially stable. You also never want to leave a child an amount that basically amounts to leaving them with nothing. Doing this will give your child access to the estate information without having to file a request with the court. 

3. Inform Them of Your Decision

It is always best to not make this a surprise that a child learns upon your death. While this can be awkward, it will make the process smoother as they will have more time to get over the initial frustration if there is any and not make any hasty decisions without thinking it through. This is especially important if your other children will be receiving money. It can reduce the chance of the will being contested and bad blood to develop between siblings. The one case where informing your child will not be necessary is if you have been out of contact with them for a significant amount of time. They are likely not to be shocked about not being included in the will at this point. 

4. Update Your Will if You Reconsider

Things may change over the years since you have written your will, and the child’s circumstances may have changed as well. If you decide that you want to put them back in your will, be sure that you update the will as soon as you reconsider. If there is no amendment to your will, it is likely the original intention will stand, and your child will not have a claim to any of your estate. 

Common Challenges for Contesting a Disinheritance in a Will

When adult children contest a will, they will usually use one of three main challenges. Knowing what these challenges are will better help you to understand how to handle your will to provide the best defense against the challenges. The common challenges include:

Undue Influence

A challenge of undue influence may be presented by a disinherited child if they feel that the disinheritance was swayed by another party. This means the contestor felt that the testator was under pressure from someone outside of the natural heirs to cut them out of the will. Undue influence often occurs when a third party threatens force or embarrassment to the testator if they do not comply with their requests. For this type of challenge, there is no need to prove the mental state of the testator when they were writing their will but instead show that they are likely to have made a different decision if they were not under the influence of the other person to sign the will. Though the contestor will likely need to have either medical or psychological records, as well as witness testimony to show the influence on the testator. 

Lack of Capacity to Create a Testament

Under this type of challenge, it is alleged that the testator did not have the mental capacity to make the will. Contrary to what many people may think, this challenge is not easy to prove. The court requires substantial evidence to confirm that the testator was not of sound mind when they drafted the will. Time also makes this challenge difficult, because if the will was signed many years before, the court would require medical evidence from the time that the will was signed, that the testator lacked mental capacity. Lack of capacity can be even harder to prove if the will was signed in a lawyer’s office since they are extremely cautious about a testator’s mental state when signing any documents. 

Improper Execution

If you are drafting your own will, there is a possibility that your disinherited child could challenge it based on improper execution. There will be specific laws to follow depending on the state you file in, but most of the time, you will need to be at least 18, of sound mind, and in the presence of two witnesses who have no financial interest in the will. The witnesses must be in the presence of the testator, and all must witness each other sign the document. You can lessen the likelihood of a challenge of improper execution by speaking with an experienced legal service to ensure that you have followed the protocols required by your state.

Disinheriting a child from your will is not a difficult process, but one where legal advice may help make the process smoother. If you are unsure of the requirements for executing a will in your state, contact a legal service to ensure that you have everything completed and filed properly to ensure your final wishes are fulfilled in the want them to be. 

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Estate Planning After a Divorce: Parenting Plans, Guardianships and More

As a couple with a family, hopefully, you & your spouse have at least started the process of estate planning.

If you are going through a divorce, however, these plans will probably need to change. You might even have to start over from the beginning of your estate-planning process.

You will want to readdress items that are needed; now though in reference to new parenting plans and other accommodations of the divorce.

In addition, you will need to know what is going to happen to your children should one or both of you become unable to care for them.

Here are the plans that you will need to have in place. Making these decisions in advance will help alleviate the stress that automatically comes with a divorce.

Parenting Plans After a Divorce

Custody and visitation are the most critical decisions that need to be worked out. You will need to decide whether one parent has sole custody or if it is to be shared. This includes visitation rights.

In most cases, both parents care deeply for their children and the children love both parents. Older children may even have a preference for where they want to spend the most time. Courts will consider this, especially after a child turns fourteen.

In some cases, however, one partner may not be a fit parent. Maybe they are abusing drugs or alcohol, have an untreated mental illness, or travel extensively for their career and aren’t home very often.

You will want to make sure the children are not exposed to any abuse. In cases where one parent is considered unfit, it is up to the other parent to prove this in court. 

Guardianships, Who Will Take Care of Your Child?

Guardianships can be either temporary or permanent. In the case of an illness or injury, a parent who has custody may not be able to care for the children. Typically, the courts will automatically give the guardianship to the other parent.

In cases such as those mentioned above, you will want to make sure you have provided proof of the other parent’s unfitness and named a suitable guardian who can temporarily step in until you can return to parenting. In the case of death, a permanent guardian will need to be found.

Again, the children’s other parent will be the first choice unless circumstances make that unwise. Making plans now will help prevent the children from possibly ending up in a dangerous situation or with strangers until things are sorted out.

Addressing Finances in Your Estate Plan, Post-Divorce

Child support is not the only financial consideration that needs to be taken care of after your divorce. The future holds expenses, such as for higher education, medical bills, memberships, and more. Decisions need to be made regarding who is responsible for each of these expenses.

It is also essential to decide if any financial arrangements, such as trust funds, will automatically be entrusted to guardians or if you will appoint someone solely to manage the financial well-being of your children. This can be necessary when whoever becomes physical guardian, even the child’s natural parent, is not good with money or it is felt they may not spend it appropriately.

Getting Advice on Your Estate Plan After Your Divorce

At Lilac City Law, our experienced estate law attorneys understand that parenting plans are often the most difficult ones to make during a divorce.

We are here to help you arrange the estate plans that you believe will take care of your children, not only now but also in the future.

If you are facing a divorce, and are unsure how your best-laid estate plans will be impacted, contact our office today and see how we can help ease your mind.

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How Does Divorce Impact Your Will Beneficiary Designations

Happily ever after rarely turns out how it is depicted on the big screen.

It starts great, but over time there is trouble in paradise. Despite your best efforts, it might not work out.

Divorce happens. And, if it is happening to you, you will want to know how it affects your will beneficiary designations.

Divorce and Will Beneficiary Designation

The last thing on your mind might be your death. But, your will and beneficiary designation is a serious part of your divorce. Take the time to do some proper estate planning.

Your Beneficiary Designation Comes First

You have updated your will to remove your ex. But, that is not enough. You must update the beneficiary designation, too.

Not only on your will but on all your other policies, too.

On your death, a designated beneficiary always comes first. It will not matter what your will says. Your estate will pay out to the beneficiary, even if it is your former spouse.

Check these documents to be sure your beneficiaries are up to date after divorce:

  • Will
  • Investments
  • Annuities
  • Trusts or Living Trusts
  • Life Insurance
  • Work-related Policies and Death Benefits

Remember, if you do not name anyone the state gets to decide. Take control of your assets by naming a beneficiary of your own choice.

What About the Will?

What about your will, though? Should you update it?

The answer is yes, though it is not as crucial as your beneficiary designation.

Most of the states in the US will do one of two things. If you leave your ex in your will, they will determine them to be ineffective or revoke their rights. Either way, they get no part of your assets.

Keep in mind this only applies to an ex-spouse. Not their children or any other relatives you may have named.

Do yourself a favor. Update it, anyway. It is good for your peace of mind.

Review and Update After Divorce

The only way to know for sure that your assets get divided as you want is to say so. Review and update both your will and your beneficiary designations after your divorce.

But, who should you choose?

If you have young children, you may want to consider a trust. Choose a close family member to oversee it. Your parents or siblings can be good choices.

If you have a new partner, you will need to decide if you have reached that level of commitment. Let your emotions settle, first. Use caution in designating a new partner soon after your divorce.

It is a good idea to consult an attorney if you have questions.

Take Charge of Your Assets, Today

Divorce is another stage in your life.  Do not leave the distribution of your assets to fate or the state.

Determine your own distribution of assets. Update your will beneficiary designation, today.

Need estate advice in Idaho or Washington state? Contact us, here.

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Four Benefits of Printing Out Your Guardianship Plan on Good Ol’ Paper

Four Benefits of Printing Out Your Guardianship Plan on Good Ol’ Paper

In today’s society, most things are done on the computer and saved to a hard drive.  Important documents are very rarely printed out and filed in a file cabinet or folder.  However, there are benefits to printing out legal documents including your guardianship plan.

Here are four benefits of printing out your guardianship plan on good ol’ paper.

Accessibility

Most people have passwords on their computers.  If you should die or become incapacitated, how will your loved ones get access to your guardianship papers if you have a password on your computer?  If they cannot figure out your password they will have to trust the judge to make a decision on who is best to care for your children.  This will make it difficult for your loved ones to ensure your wishes are being met for your family.

Even if they are able to get access to your computer, they may not be able to figure out where you saved the guardianship papers.  Everyone has a different way of filing documents on their personal computer. For example, one person might put their guardianship papers in the file titled “Important Documents” while someone else might put it in a file titled “Stuff to Keep”.

Having it already printed and labeled in a file cabinet can be the easiest way for your family to access it.  In fact, here’s what we do when we create a plan for a client!

Verbal communication

Verbal communication is not enough.  It is great that you and your spouse agreed on someone to take your children and that person agreed to step in. However, you need a legal document stating who will be the legal guardian for your children.  If you print out your guardianship papers, you can give a copy to the person who will be caring for your children and you can put one with the rest of your estate planning paperwork. Having more than one copy ensures that it will be found when needed.

Expectations

Printing out your guardianship papers allows you to give them to your appointed guardian along with any other instructions you may have.  For example, you can write a letter of instruction to them.  You can explain your hopes and expectations for your children’s upbringing including education, activities, and religion.

 

Security

Having your documents saved on your computer risks them being compromised by hackers. This may not happen often but you do open yourself up to the possibility if you are saving your guardianship papers on the computer. Other security threats you risk by saving your guardianship papers online are:

  • Ransomware (software designed to lock up a computer until a ransom is paid) (very rare for personal computers)
  • Theft
  • Viruses
  • Data failure (data and documents can be lost due to software or hardware failure)

Hackers are not the only ones that can change your document.  If someone really wanted to, they could log onto your computer and change your guardianship papers to benefit them.  If you have them printed out and stored safely then they are much harder to be changed.

Printing out your guardianship papers has definitive benefits that will ensure your wishes are met if you are to become incapacitated or if you die.

Talk to an Estate Planning Attorney About Family Protection and Guardianship, Today! 

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How Does A Meretricious Relationship Play Into An Estate Plan?

How Does A Meretricious Relationship Play Into An Estate Plan?

Regarding marriage, Washington state does not recognize common law. Instead, Washington State looks at a long-term, committed relationship as a meretricious relationship or cohabitation.

Being in a meretricious relationship versus being legally married can affect what happens to your property and assets should one of you become disabled or die.

What is a Meretricious relationship?

In the state of Washington, a meretricious relationship is where there is cohabitation in marital nature but not legally on paper. You might casually refer to this as “living together, but not married.” So, for example, you and your significant other have been in a relationship for the past 20 years where you live together, have joint bank accounts, and make joint decisions on all financial decisions, but you are not legally married then you can be considered to be in a meretricious relationship.

  • Several factors that the court considers when determining if it is a meretricious relationship are:
  • Length of the relationship
  • Time of continuous cohabitation
  • Nature of the relationship
  • Extent to which the funds and assets have been co-mingled
  • Intent of the parties in question
  • Stability and commitment to your relationship
  • Living as though married (have a family together, refer to each other as husband and wife, etc.)

Each case is looked at individually. A couple generally needs to live together continuously for a minimum of 2-3 years and present themselves as being in a committed relationship like a marriage.

Washington state recognizes same-sex relationships as a meretricious relationship.

Even though the state recognizes meretricious relationships in certain situations, it does not give the relationship the same rights as legal marriage.

How will this affect my estate plan?

If you are in a meretricious relationship, you want to make sure that you have an estate plan in place. Your assets will be divided according to the court as they see fit if you do not have specific wishes in your will, and you do not have a legal marriage in place.

Having a comprehensive estate plan ensures that the division and distributions of your assets are done the way you want them to be.

Things you can do:

Put it in Writing

Putting your wishes in writing in your will ensure your assets will be divided the way you want them to be. In some cases, such as a same-sex couple, your partner could be completely left out if the state you live in does not recognize same-sex marriage. In other instances, your house could be awarded to your children instead of your partner because it was not in your will.

Consider a Trust

A revocable living trust keeps your assets from having to go through probate. If you die the court will appoint a someone to manage your probate estate, and if they do not recognize your partner as speaking with the authority of a married partner, that could create ambiguity you want to avoid.

Establish Rights

Cash, investment accounts, and real estate assets should be put into joint ownership so they can pass to the surviving owner. Also, if the couple has children together and only one person is the biological parent, the not-biological parent should adopt the child to get parental rights.

If you are in a meretricious relationship, you should contact a family law attorney. They can help you fill out all essential estate planning forms and help you make sure your assets are divided and distributed according to your wishes.

Contact Lilac City Law for help in setting up a living trust

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Estate Planning and Divorce: Incapacity, Death and Alimony Considerations

Divorce & Financial Planning

 

If you are considering a divorce, it’s critical to understand the impact of your divorce on what would happen in the event of your incapacity or death, either during the divorce or after.

Unfortunately, most divorce lawyers do not give any thought to incapacity or death, simply because they do not have training on these issues specifically and it’s not at the forefront of their minds when they are advising you through your divorce.

So, that means you may need to be the one to bring it up.

 

Things to Keep In Mind

When you do, here are some things for you to keep in mind:

Automatic Temporary Restraining Orders

As soon as you file for divorce, automated “orders” go into effect that will limit what you can do with your assets during the divorce. These are generally called Automatic Temporary Restraining Orders or “ATROs” and they impact how you can change prior estate planning documents and what you can do with future estate planning decisions while your divorce is in process. Talking with your divorce lawyer about these issues (or making an appointment to meet with your Personal Family Lawyer®, if we have created your estate plan before you file for divorce) is a wise choice.

Temporary Documents and POAs

If you have already filed for divorce, you may want to revoke any existing powers of attorney and health care directives giving your soon to be ex-spouse control over your assets and your medical decision-making if you were to become incapacitated, as well as execute what we call a “divorce will”, which is a “temporary” Will that would cover the disposition of your assets in the event of your death during your divorce. Again, talk to your divorce lawyer about these temporary documents that can be executed while you are in the divorce process, and then ensure he or she is coordinating with us on your behalf to get these documents prepared and signed.

Be sure to update your “temporary” during divorce estate planning documents once your divorce is final, and all asset dispositions have been handled, to consider your new reality.

 

There Are Many Ways to Get Divorced

The traditional litigation/fight oriented divorce could require years of litigation, and a division of assets based on legal rights, rather than your specific needs and desires.

Alternatively, there is a movement today towards “conscious uncoupling” in which you and your spouse collaboratively tailor the outcome of your divorce to meet each of your specific needs and desires, as well as the overall impact on your family.

With this method, instead of having a judge make all the important decisions in your divorce, you can make decisions that are right for you. This is especially helpful when dealing with alimony.

 

Alimony

Also called spousal support or spousal maintenance depending on the state, is financial support paid to the non-income earning spouse during the divorce proceeding and after the judgment.

Alimony can be paid a number of ways. Most commonly monthly, over a predetermined period of time. Durational payments carry the benefit of a steady income for the recipient but can be modified under certain circumstances, leaving some uncertainty, but also room for continued communication about what’s needed over the non-income earner’s life as well as what’s possible over the lifetime of the income earning spouse.

With a conscious uncoupling process, the needs of each spouse can be revisited over time.

Because monthly payments (and a continuing relationship) aren’t right for every family, alimony can also be paid in a lump sum. This is also referred to as alimony buyout.

Lump sum alimony either in the form of a cash buyout or a disproportionate property division is not subject to modification or termination, so it creates a finality to the relationship that isn’t there with a continuing monthly payment.

 

Alimony Decisions

If you do decide on continuing monthly payments versus a lump sum alimony payment, it’s critical to ensure that those payments would be able to continue in the event of incapacity or death of the spouse paying alimony. In that case, please talk with us about insurance options to guarantee the alimony. As well as ensuring that the spouse paying alimony has properly handled those payments in his or her estate planning documents.

If you decide on a lump sum alimony, be sure to update your estate planning to reflect the new assets you now will have titled in your own name. We can discuss trust planning options to ensure those assets stay out of Court, if and when anything happens to you.

 

Financial Guidance on Negotiating a Divorce

For the legal and financial guidance in negotiating a divorce that works for you, come in to meet with us for a Family Wealth Planning Session, if you are not already a client, so you can get clear on what you own, and what would happen to what you own, in the event of your divorce. And, if you are already a client and considering divorce, please contact us so we can help you consider your options and find the right lawyer or lawyers to support your process through the divorce.

As your Personal Family Lawyer®, we can guide you in creating a comprehensive financial plan that protects and preserves your wealth while meeting all your financial obligations. Before the session, we’ll send you a Family Wealth Inventory and Assessment to complete that will get you thinking about what you own, what matters most to you, and what you want to leave behind.

 

 

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How Do I Appoint a Guardian For My Child If I Die?

How Do I Appoint a Guardian For My Child If I Die?

Who Would Raise Your Children If Something Happened to You?

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Randi L. Johnson, Lilac City Law, Estate Planning, Social Security Disability, VA Disability

By Randi L. Johnson

How Do I Appoint a Guardian for My Child If I Die?

 

Honestly, no one wants to think about this question. It’s a tacit reminder that we are indeed mortal and, in some cases, we may leave this world before we are ready.  What are our plans if this were to happen?  Putting your assets in a trust, or last desires into a Will – helps to make sure your financial holdings are passed on to whomever you want them to go.  However, if you don’t create a care plan, or declare a guardian for your children the courts may decide who cares for your children if you die.

Are you comfortable with a stranger making this decision?

 

A Stranger Might Raise Your Children

“My greatest fear, someone I don’t know raising my child… What if something happens to me, who is going to take care of my child?”

This sentiment is a visceral fear that most parents have at some point.  And for a good reason; when we raise our children, we are trying to put the best of ourselves into them.  That means our world view, and our lessons learned, even our religion or philosophy for life.  In short, we are trying to instill our values and love.  But not everyone has those same values, do they?

Before we get into how to go about setting up a Guardianship Plan, this is something to consider…Who should you appoint as a guardian for your children in the event of untimely death?

 

Who Should Raise Your Children if You Die?

Establishing the Guardianship Plan (Kids Protection Plan) is the last step in the process of protecting your kiddos.  Before you even get that far, you should first be thinking very seriously about who can provide a lifestyle for your family that you’d be ok with raising your family. 

Often this is a sibling, parent, or maybe even an adult child.  However, it’s not uncommon to consider someone who isn’t directly related. Your internal family dynamics aren’t on trial; it’s a very personal consideration and decision you are making in the best interest of your family. Don’t unduly narrow the scope of consideration; this is a choice you are preparing for everyone’s best interest.

Here are some basic requirements and some other things to think about:

 

Your children’s guardian must be:

  • At least 18 (in most cases)
  • Able to fulfill their duties as a guardian
  • Able to financially provide for your children

 

Your children’s guardian should be:

  • Of similar outlook to you and your partner
  • Knowledgeable of your goals as a family and parent(s)
  • Capable of providing emotional support for your children
  • Stable (family wise, financially, etc.)
  • Someone that you’re comfortable having around your children.
  • Aware that they are being asked to be appointed as a guardian

 

 

How to Appoint a Guardian For Your Children

If you know who you want to take care of your children, the process for establishing a guardian involves declaring your desires in such a way that it will stand up to scrutiny by a judge if necessary. That’s a wordy way to say that just because you have a wish for a guardian, it doesn’t mean your preferences cannot, or will not, get challenged.  This potential hurdle is why so much consideration should go into your decision of who to appoint as a guardian.

A verbal agreement, for instance, is quickly challenged and will not instruct a judge what your wishes are. They may consider it, but without proof, your children will be relying on a judge’s discretion.  In this case, a judge well-meaning meaning but does not know you and will only know you through what information you leave behind if any. Frankly, there are too many unknowns here for me or most moms to feel comfortable knowing things will, “turn out ok!”

Better than a verbal agreement, a quickly drafted written agreement provides at least some potential protection.  In this sense, an informal written agreement certainly is better than a verbal agreement, but it can still be easily challenged.  When looking for how to prepare documents to stand up to future challenges, we always advise putting them together in such a way that it answers all the questions a judge would have about your wishes. That’s why when we prepare guardianship plans, we put all these wishes, desires, values, and more into a well prepared, and notarized, Last Will and Testament.

Placing your guardianship plan in your Last Will means a couple of things.  First, because you probably had an attorney’s input on the structuring of the guardianship plan, it will be structured to be clear enough to avoid being challenged.  Second, it automatically becomes part of the probate process, for which your family will likely have an attorney helping them through.  If the plan is part of your Will, the attorney will be working to make sure your wishes are carried out according to what you have drafted.

 

Alternatives to Placing Your Guardianship Plan in a Will or Estate Plan?

It is possible to create a Guardianship Plan and not have it be part of your Will. Here’s a free and easy way for you to do it right now.<- This will get you set up with the basics of a Kids Protection (and Guardianship) Plan. You’ll still want to consider having an attorney involved in this process, even if you can use that link to start laying out your desires without one.  The benefits, as described before, are that with an attorney’s assistance you’ll be creating a plan that will stand up to the scrutiny the law requires a judge to pay to your desires and the well-being of your children.

 

What Happens to My Family If I Die?

Strictly speaking, death isn’t the only way a Guardianship Plan might become necessary.  A Guardianship Plan might be essential if you (and your partner) become incapacitated in some manner too. This potentiality in and of itself describes why you might want to make this more of a protection plan than something you place in your Will and forget.  If you haven’t died, but need to appoint a guardian, you likely still want the plan to support your desires!

Back to the point, what happens if you die?  The processes are determined by the state you live within, but generally speaking, a guardian will be required to establish the ability to provide for your children. This procedure occurs in a court setting. Here’s a great list of requirements and resources for more information, by state.  Of course, if you have questions about this, you can always respond in the comments below too, or send us a question/messagehere.

 

Have you Been Through this Process as a Child or as a Guardian?

We’d love to put together a list of tips or lessons learned from the perspective of a child having gone through this, or from the perspective of a guardian having adopted the children of deceased parents.  Please feel free to reach out to us so we can help parents better understand how this process works.  You can contact us hereor connect with us on Facebook.

 

I’m Ready to Protect My Family if I Die, What Do I Need to Do?

Reach out to us via the contact form below, or simply call our office. Our team will reach out to you and send you all the information you need.  We are here to help you protect your family.  It’s our mission and our passion to support you and your family. 

 

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