We Answer Some Frequently Asked Questions About Estate Planning
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What is a Kids Emergency Plan?
The Kids Emergency Plan covers your children’s complete care during an emergency. It includes legal documents governing who would raise your kids if you were to pass away, who can care for them temporarily during an emergency, who is authorized to make medical decisions for them if you cannot, instructions on how you wish your kids to be raised, children’s health care history, and an alert plan that would work the moment something should happen to you. If you have minor children, naming a permanent guardian is not enough! You need to have an estate plan coupled with a Kids Emergency Plan.
Do I need to get a guardian’s permission before I nominate them to raise my children if I pass away?
No. The guardian you nominate will have to decide at the time you pass away if they accept your nomination to assume this important role. For this reason, we recommend that parents nominate at least three individuals or couples who can potentially raise their kids, in the order of preference, just in case someone declines or predeceases you. Because parents often change their choice of guardian over the years, we recommend that parents inform a potential guardian that they are one of the persons considered, but not reveal the exact order if there is concern over hurting anyone’s feelings.
Does the guardian I choose have to live in the United States?
No. Parents can designate any responsible adult to raise their children if they pass away, even if they do not live in the United States. Ultimately, a judge must approve any parent’s nomination of guardian. For parents nominating guardians who live out of the area, or even out of the country, it’s important to also designate local temporary guardians who can care for the children in the interim until the permanent guardians can arrive and assume their role.
What if my spouse and I cannot agree on who should be a guardian?
You’re normal. We can counsel you on factors to consider and help you arrive at the best decision for your kids. Oftentimes couples find that having a third-party present, such as an attorney, who can answer questions and keep the conversation on track, leads to a happy joint decision by the spouses.
How do I legally designate someone to raise my kids if I pass away?
Parents can name permanent guardians for their children in a standalone Nomination of Guardian Form, or in their Wills. Additionally, parents should name temporary guardians who can keep the kids during an emergency until the permanent guardians can assume their role. Parents should also establish a Kids Emergency Plan to prevent their children from being placed in the care of strangers, and to appoint individuals to make medical decisions for minor children during an emergency.
What is a permanent guardian?
A permanent guardian is the person(s) you legally designate to raise your minor children if you pass away.
What is a temporary guardian?
A temporary guardian is the person(s) you legally designate to care for your minor children for a short-term period if you are seriously injured or pass away. Their role is to care for your children until the permanent guardians can assume their role, or care for the children until you recover from your injury. We recommend you name 4-5 family members or friends who live within 20 minutes from you, who you can count on to come and get the kids in an emergency, avoiding the need for your children to be placed into temporary foster care.
Who Should Have a Revocable Living Trust?
Whether you are young or old, rich or poor married or single, if you owned titled assets such as a house and want your loved ones to avoid court interference at your death or incapacity, consider a revocable living trust. A trust allows you to bring all of your assets together under one plan.
What is a Revocable Living Trust?
A revocable living trust is a private legal document your attorney sets up that addresses who you love, where you want your assets to go when you pass away, the terms for distribution to your loved ones, and who oversees making sure your wishes are honored. Because it is revocable, you can change your wishes at any time during your life. Revocable living trusts are private in nature, and are not publicly filed when you pass away. One of the most important steps in setting up a revocable living trust is connecting your assets to the trust, including your home, banking and investment accounts, life insurance policies, and retirement plans. To do this, you simply change the ownership or the beneficiary designations of the asset once your trust is established. Without properly connecting your assets to the trust, your assets could still end up in probate.
What is a Durable Power of Attorney and when do I need one?
These allow you to appoint someone you know and trust to make your personal health care and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.
What is a Living Will?
A living will is a legal document that declares your wishes for end-of-life decisions. Most people sign a living will directing family to remove them from artificial life support if doctors determine they are in a vegetative state and will never recover from their illness or injuries. The Living Will works in conjunction with the HIPAA Authorization and Advance Health Care Directive, which each provide other important authorizations and instructions.
What are Beneficiary Designations?
You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.