Starting a new school year comes with a seemingly endless “to-do” list: buy school supplies, meet the teachers, make the school lunches, create a schedule for extracurricular activities, get to those nonstop piles of laundry.
One thing that is always on your mind that may not be written on a list is “planning for the future well-being of your child.” Although a young parent’s “to-do” list may seem daunting, it’s crucial to include estate planning on that list. Estate planning plays a pivotal role in ensuring that your children are provided for in the event of unexpected circumstances.
In Massachusetts, there are specific considerations young parents and families should keep in mind when creating their estate plans. Here are 5 essential things you should know as a young parent (or even as a young grandparent) about estate planning.
1. What is a Guardian?
A guardian is someone who will take legal responsibility for your child’s physical well-being and care in the event that you and the other parent pass away or become unable to care for your child. Your guardian has the authority to make all decisions regarding the care of your minor or incapacitated children, including healthcare decisions, residence, education, and religious upbringing.
You typically name a guardian in your Last Will and Testament to have custody of your minor or incapacitated children. Upon your death and the death of the other parent, the guardian you named will need to go through the court process to confirm their guardianship. The court will evaluate whether the proposed guardian is suitable and whether it is in the child’s best interest to be in the guardian’s care.
2. What is a Conservator?
A conservator is the person who will have authority over your child’s financial assets. This might be necessary if the child received an inheritance, settlement, or other funds that need proper management until the child reaches a certain age or can manage the assets themselves. This includes Social Security benefits your minor child would receive based on your earnings. If you establish a trust for your children (which I will discuss later in this article), the conservator does not manage the assets in the trust; these assets will be controlled by the person you name as Trustee.
Like naming a guardian, you generally name a conservator in your Will. The conservator can be the same person serving as guardian, but it isn’t required. The conservator will also need to go through the court process to be appointed, which can take a long time and requires a lot of court oversight.
3. Parental Appointment of Temporary Agent
I’ve mentioned that a guardian or conservator named in your Will must go through a court process to be appointed, and that this court process can take a long period of time. What happens during this time that your guardian or conservator is waiting to be appointed by a court? Who takes care of your child and makes decisions for them?
Massachusetts law allows parents of a minor or incapacitated child to designate a temporary agent to take care of the child for up to 60 days. This temporary agent has the power that the parent had regarding the care, custody, or property of the minor or incapacitated child until a permanent guardian or conservator is appointed by the court.
The temporary agent is appointed through a document called a Parental Appointment of Temporary Agent. Keep in mind that you and the other parent must appoint a temporary agent together unless the other parent consents to the appointment in writing or the other parent’s parental rights have been terminated.
4. Create a Will or Establish a Trust
Drafting a comprehensive Will is the cornerstone of any estate plan, especially for young parents and families. As I mentioned earlier, you can designate a guardian and conservator for your minor or incapacitated children in your Will. Your Will also specifies how your assets will be distributed to your children; however, it is important to note that your Personal Representative cannot distribute funds over $5,000 directly to a minor child.
In Massachusetts and many other states, minors under the age of 18 cannot assume control of property given directly to them through an inheritance. If you leave money or assets to your minor child through your Will and you do not specify how those assets are handled, then a conservator will need to be appointed by a court to manage the funds.
This can be avoided by establishing a trust for your minor or incapacitated child. A trust can manage and protect your child’s inheritance and be tailored to your preferences, specifying when and how your child will receive assets. You can also name a Trustee to manage the trust assets on behalf of your child. The Trustee may be a family member or friend, professional fiduciary (attorney or accountant), or corporate fiduciary (such as a bank).
5. Properly Designate Beneficiaries
You should regularly review and update beneficiary designations on your life insurance policies, retirement accounts, and other assets. Well-intending parents may name their minor or incapacitated children as beneficiaries of their life insurance policies or retirement accounts so that the child receives the assets directly. However, remember that minors under the age of 18 cannot assume control of money. This means that naming your minor child as a beneficiary can result in unnecessary complications and a conservator needing to be appointed by the court. Naming an incapacitated child comes with its own set of complications, which can include the child losing essential government benefits.
It is important to consult with an experienced estate planning attorney about properly designating beneficiaries on your life insurance policies, retirement accounts, and other assets to ensure that the funds are used for your minor child’s care while reducing any unnecessary hurdles or court involvement.
These are tough decisions that require thoughtful consideration and planning. As your family grows, the last thing you want to think about is what happens to your child if you are no longer around. Unfortunately, life is unpredictable, and taking proactive steps now will provide peace of mind knowing that you have taken care of your child’s well-being, no matter what the future holds. Estate planning is crucial in securing your child’s future and addressing the unique needs of your family. We are happy to help you ensure that the legal aspects are properly handled so that you can go back to making great memories with your family, and maybe even finishing those piles of laundry.
Attorney Brittany Hinojosa Citron is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of trust and estate planning, estate settlement and elder law matters. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020.
September, 2023
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