ESTATE PLANNING FAMILY CONSIDERATIONS
Although death or disability is not something that we like to think about, the grief experienced by family members when a loved one passes makes it tough enough, and often a family must deal with other changes. Relationships often change, such as when a surviving spouse has less interaction and contact with the deceased spouse’s children from a prior marriage. Confusion may result between family members, such as how to handle the deceased’s assets and final wishes. This can also strain once-solid relationships.
The difficulties experienced by family members are not limited to death. When a loved one becomes incapacitated or disabled, family members are often left making difficult decisions. Such situations leave family members searching for answers to these decisions without guidance from the disabled or incapacitated loved one. These decisions are made more easily when the incapacitated person has left instructions as to how these decisions ought to be made.
Where both parents die leaving minor children and no estate plan, the children’s future, care and custody are left to the courts. The courts can appoint a legal guardian, who may not be in the best interests of the children or who would not have been favored by the parents. This could be easily rectified with a proper estate plan whereby the parents nominate a guardian to care for and maintain custody over the children. The death of both parents is a traumatic experience for minor children, making it preferable that the person nominated to act as a guardian be one acceptable by the parents.
Children of divorced parents require further consideration. Usually, when one parent dies, the surviving spouse has full custody and control of the assets. A deceased parent desiring to assure that his or her children from a prior marriage are adequately provided for may wish to consider utilizing the benefits of a qualified terminable interest property (QTIP) trust to accomplish this. For outright gifts to a minor child, the deceased spouse may wish to consider nominating someone other than the surviving spouse to manage and control the gift if the spouses do not agree on financial matters. Also, if the deceased parent desires that the custody of a child from a prior marriage should be with someone other than the surviving spouse, a proper estate plan is essential.