Choosing who to care for your minor children in the event of your passing may well be one of the most difficult decisions you face as part of your planning process. The following is a list of suggestions to help you weigh your options. The first thing to remember, though, is that nobody is going to parent your child exactly like you would. Looking for that “perfect” fit may keep you from making any choice at all, in which case the courts will decide for you. Your children may end up being raised by someone you DON’T want, and that.

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If you are drafting a will or trust, you will be required to select a personal representative (executor) to administer your estate and/or a trustee to carry out the terms of any trusts you have established. Here are some considerations for selecting the right person or professional for the job.   Look for someone with good financial sense.   A personal representative or trustee doesn’t need to work on Wall Street to be a solid choice to manage your trust. Choose someone with good financial judgment and common sense. It is also fitting to find someone who is willing to ask.

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Your Life and the Law Changes I am sure when you completed your estate plan you felt relief and confidence that all was in place for your loved ones. However, time marches on. Just as your life changes, your trust needs to change to fit your new circumstances. The little ones who were on your lap when you first set up your trust, may have little ones of their own now. The assets you own likely have multiplied or increased in value. The people you listed as executors or trustees may no longer be able to aid you and family.

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Generally a person forms a living trust for 5 reasons:   To Avoid the Hassles of Probate. Assets placed in a living trust do not have to go through the probate process.  Probate is a court-supervised process where assets are inventoried, creditors and beneficiaries are notified, and assets are distributed.  The probate process can be lengthy and costly depending on where a person lives, the number of creditors and beneficiaries involved and the number of disputes between potential beneficiaries.  While Utah has a more streamlined probate process than most states, generally assets in a living trust can be accessed easier.

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A Will: A will is a legal document that states how certain property a person owns will be distributed when they die. It also appoints a person to oversee the distribution of such property together with the probate court.  A guardian can also be appointed for minor children in a will.  A will does not take effect until after a person dies and must be signed with certain formalities to be effective. Generally, when a person dies with a will, it is filed with the probate court in the county where such person lived.  The assets governed by the will.

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Life happens and as much as we like to think we are invincible, unfortunately we aren’t.  If something happens to you (and your child’s other parent) and you don’t have a legal plan in place, then a judge will decide who will raise your children and who will manage your children’s money. What Happens If I Don’t Plan? Because a judge does not know your parenting style and values, the judge may choose a person to be the guardian of your kids that you would absolutely not want to raise them.  The judge could also select a person to manage.

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If you (and the other parent of your children) die and you don’t have a legal plan, the results can be tragic. The following case study illustrates what can happen without a plan: Case Study. Bob and Judy have been married for 10 years and have three children:  Elena (8), Dustin (6) and Chloe (3).  They have talked to each other about the need for a legal plan and even discussed who they would want to care for their kids if something happened to them.  Unfortunately Bob and Judy never legally documented their wishes.   Bob and Judy are in.

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You’ve worked hard and have been careful with your money so you want to make sure it goes to the people YOU choose. Carefully Structure Your Plan It is important that you carefully evaluate your property and determine the best way to pass it to your loved ones.  An attorney specializing in estate planning is in the best position to help you legally structure your plan to avoid common legal pitfalls and to ensure maximum tax savings.  For example, before she came to see me, a client added her son to the deed of her home.   She didn’t realize.

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Special needs children and adults are particularly vulnerable to financial abuse.  Therefore, careful planning is particularly important if you have a child with special needs or a child that qualifies (or could potentially qualify) for government assistance. If you fail to plan, then the assets you have left to your special needs child could go to the government and may not be managed by the person you choose. Proper Structure and Language is Crucial Many strategies exist for protecting assets for special needs children. Often a dedicated trust can be established that protects your special needs child.  You decide who.

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It’s one thing to plan for your passing; it is in everyone’s future. It’s another thing to think about the possibility of serious injury or incapacity. However, as uncomfortable as that topic is, it is very important that you legally document who you want making decisions for you if you can’t make decisions for yourself.  If you don’t, then a court will decide who will make decisions for you (and it may not be the person you want). Some of these legal documents must be notarized and/or witnessed by another person so it is important to get legal guidance to.

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The care you have taken of your family and assets during your lifetime doesn’t end upon your passing.  If you fail to plan, then the state has a plan and it may not be the plan you had in mind. Legal Planning can save your loved ones from the hassle of court proceedings, certain fees and taxes, the surprise of unexpected inheritances, some creditor claims and potential family disputes.  Not planning forces your family to make crucial decisions about your assets at an emotionally charged time. They may have no idea (or worse, differing ideas) about what you would have.

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Don’t let the term “estate” make you think estate planning is for people far wealthier than you. Your estate, no matter how modest, consists of everything you own – your car, home, savings, investments, insurance and personal possessions. Regardless of the sum value of these things, you can’t take them with you when you die. So, estate planning is making decisions about who you want to receive an inheritance from you, what you want them to receive and when you want them to receive it.  Under a good estate plan, you also decide who you want to make decisions for.

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The first step in planning is realizing the importance of doing it! There are several pieces of an estate plan that will ensure your loved ones receive their inheritance from you with the least amount of trouble, taxes and court delays. Engaging competent legal counsel will ensure that all of these pieces are in place with appropriate documentation and attention to detail.  An attorney who specializes in estate planning will be able to help you collect all necessary information, decide what legal documents you need, and assist you in making the best choices for executing your wishes in case of.

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