Estate planning is the preparing of legal documents to carry out your testamentary intent. Estate planning does not just take into account the high net worth individual who is primarily concerned about estate taxes, but rather planning for everyone’s testamentary intent. Testamentary intent is what you want to happen when you die. Notwithstanding, the general definition estate planning can include sophisticated gifting options to reduce one’s taxable estate and avoid or diminish federal and state estate taxes.
I have been practicing in the estate planning world for the past decade or so, and I have found that the hardest decision that most people have to make is choosing their guardian for the children. In fact, it is so difficult that prior to meeting new clients with children, it is the only decision I make them come to the meeting prepared to answer.
I am confident I can walk a family through every other issue regardless of family dynamics, net worth or complicated tax matters, however, watching a couple determine/fight over who can care for their young children is often too much of a speed bump in the process.
What Happens When You Don’t Choose a Guardian?
Choosing a guardian is one of the most, if not the most, important decision you’ll make during your estate planning meeting. If you fail to have an enforceable plan (i.e. a duly executed Last Will and Testament pursuant to the laws of your particular State) then it is going to be up to the court to listen to your family fight over your children! After all the heartache and money spent to get to the other side then you can only hope that the relationship is strong enough so the losing side will still be able to be involved in the child’s life.
In my particular case, it would be my parents and my wife’s parents spending a ridiculous amount of money arguing over who has the pleasure of raising my minor children.
Things to Consider When Choosing a Guardian
While you are the only person that will know who you want to take care of your children there are some items you should consider prior to naming him, her or them.
Where do they Live?
Is your chosen guardian in a different country? There is no guarantee that a court is going to allow you to relocate an American Citizen 3,000 miles away in a different country out of the jurisdiction of an American Court system. Maybe you want your child to live in a particular location because of roots, lifestyle, etc. Is the chosen Guardian willing to move to where you are?
Is Religion Important to You?
Are they as religious as you are? Are they more religious? Is that important to you?
Do They Have Children of their Own?
It may not be a great idea to give someone who has never had a child 3 kids under the age of 4. Similarly, if they have 4 children of their own, can they really take on 3 more? Are there age differences between the children? Do all of the kids get along?
Do they have the Means to Take Care of your Children?
If you have children and no life insurance, then you are being irresponsible! Recognizing that there are a ton of irresponsible people in this world you have to ask yourself i the person you are naming can raise your children in the lifestyle you want them be raised in. I am not saying money is the end all be all, but when you deciding whether to raise another person’s children it is going to at least going to run through their mind prior to accepting the appointment.