Attorney & Mediator
Attorney & Mediator

What happens to my children if I don’t have a Will?

If something untimely and unanticipated happens to the parents of minor children, what happens next?

The Probate Court must appoint a Guardian and a Conservator for the children that will serve until the children are 18 years old.   This will be done without any guidance from the deceased parents.

A Petition for Appointment of a Guardian will be filed in the Probate Court by an individual wanting to serve in that capacity.  If multiple parties think it should be them, then there will be a hearing in front of the Probate Judge who will then make a decision. 

This is necessary as children must have care givers and people who will serve in a parental capacity to raise them.  It is also unfortunate as the Probate Judge will have little information upon which to make a decision.

The relatives who show up will presumably do so in nice clothes and using nice manners.  They will all “look good”.  The judge will have no idea as to the feelings of the now deceased parents. 

What if she didn’t like the way she was raised?  If her parents were too detached?  Too strict?

What if he doesn’t like the way his brother lives? Too lazy?  Too driven?

In the end, the judge will make the best decision that he or she can make with the information that is presented.

Don’t leave your children’s fate in the hands of a judge who doesn’t know you.  Plan.  Get a Will done and nominate those individuals that you would want to raise your children. 

Estate Planning – Fair and Equal are NOT the same

Fair and Equal are NOT the same thing.

In my estate planning practice, I see parents agonize over the equal distribution of property upon their death. They believe that it is crucial that each child gets an exactly equal share.

Before I continue, I will admit that many children believe that this is the right way to do business. I have seen some of them count the spoons in the kitchen, divide up the dish towels and count the pennies in the change jar. They will not be satisfied until they are certain that they have obtained their fair share, which they believe is the same thing as an exactly equal share.

I try to advise my clients that they may want to consider that fair and equal are not the same thing. When thinking about this, you may want to remember how you treated your children when they were younger. Did you refuse to get braces for one child’s teeth because you had not done so for another whose teeth grew in straight? Did you refuse to allow your son to play football because the equipment was more expensive than the track shoes your daughter needed for her athletic choice?

A family will in all likelihood spend more for a girl’s clothes than for a boy’s. The girls may eat less than the boys. As a general rule, we do not make these comparisons for children. They each get what they need – that is what is fair.

What we spend on their education, medical treatment and extras may differ as the years go along, yet, when planning for the disposition of our estates a new rule seems to set in.

There are many instances where it could be fair to be unequal.

If one child is quite affluent and the others are living in more modest circumstances and could use the assistance, is it right to give the affluent child the same share even if he or she doesn’t need it?

If you have a family owned business or farm and one of the children is working in the business, should the others be given an equal share of that business even though only one has poured his blood, sweat and tears into it?

If you have a child with a disability, is it appropriate to leave the same share to him or her when it can only be used to supplement his or her needs?

If one child has been physically and emotionally close to you and has assisted you for years, should his or her share be the same as the ones who are distant and have not visited often?

If one has a history of bad decision making and is a spendthrift, should he or she be given the same share, knowing full well that the money will be gone shortly after it is received?

Some thoughts to ponder as you consider your estate planning decision making. Perhaps the fair thing to do is to divide your estate into shares which appropriately reflect the individuality of each child, his or her contribution to your life and your family, and the place they are in on their journey.

Your Kids Are Turning 18, What Steps Should You (They) Take?

When your children turn 18, are there any steps that you should take or have them take? Yes! They are no longer minors and you do not legally have the authority or the ability to assist them at critical times.

Power of Attorney. Have them sign a Power of Attorney that gives you the right to do business and banking for them. They may think that this is an erosion of their power – since they are now adults. It is no more so than when you sign a Power of Attorney.

Why is this necessary? You, as the parent of an 18 year old, do not have the right to discuss their tuition (even though you write the checks) with the college they attend, their medical insurance coverage (even though you write the checks) or other insurances such as automobile insurance (even though you may write the checks).

They are accustomed to you assisting them with many of these issues but you may run into a roadblock with many companies unable or unwilling to discuss their issues with you. A Power of Attorney will give you the authority to handle these type of matters on their behalf.

Medical Power of Attorney. This is a necessity. When your child turns 18, you no longer have any access to his/her medical information and are not permitted, even in an emergency, to assist with direction of their medical care. It is prohibited by law.

Therefore, if your son or daughter were very ill, or in an accident, you would be notified by the first responders or the hospital. When you got there, however, you would only be able to look at them. The hospital and staff would not give you any medical information whatsoever.

Worse, there would be no one to direct their medical care and assist them by making critical medical decisions on their behalf.

If they sign a Medical Power of Attorney, also known as The Five Wishes, Patient Advocate Designation or Living Will, appointing you as their advocate if they were unable to make and communicate informed medical decisions, you would be able to act in times of emergency.

Again, this doesn’t take any power away from them. If they are able to speak and communicate, they will be in charge of their own medical decision making. If they need help, however, you will be armed with the paperwork that you need to step in and help – as you always have done.