The foundation of any estate plan for parents of minor children (regardless of family assets) is the naming of legal guardians. Neglecting this planning can leave your children's future in the hands of complete strangers. Making mistakes in the process can also lead to some easily avoided problems. This article covers the six common mistakes most parents (and yes, most Lawyers!) make when carrying out this critical planning.
1. Naming a couple to act as guardians, when you really don't want both people to be potential guardians. It's important to think about and address what should happen if the couple breaks up or one of the partners in the couple is unavailable to serve as guardian.
2. Only naming one possible guardian. It is best to name as many successor guardians as possible. If something happens to your first choice, you don't want the court deciding who should raise your children.
3. Failing to consider financial resources. Your guardians do not have to (and often should not) be financial decision makers for your kids. However, it is best to think about whether the financial decision maker will work well with the guardians you have named. You should also evaluate and plan for the availability of resources to raise your children, which often will involve life insurance planning.
4. Only having a Will. With a Will based estate plan, the court will distribute your money in a manner that is expensive, lengthy, and totally public. there are many advantages to a Living Trust based plan instead. These include, among other things, the ability to protect your money from divorce and lawsuits.
5. Failing to exclude guardians where appropriate. In some cases, it's not just about who you DO want raising your kids, but who you definitely DO NOT want stepping into that role. If you are concerned that someone you'd never want to care for your kids would challenge your guardian decisions, a "confidential exclusion of guardian" document should be completed.
6. Only naming guardians for the long-term. In addition to naming permanent guardians, you should also make arrangements for the short term in the event you are in an accident. It's vital to plan for what would happen in those immediate hours until your permanent guardians can arrive. Providing nearby people who are both trusted and familiar to your children with instructions and temporary legal authority can prevent your children from being taken into custody by Child Protective Services at a time when they most need support.
