I am often asked by young couples with children a very adult question. "If something should happen to the both of us, who will take care of our children?"
This is understandably a very serious issue and one that can keep parents up at night. Fortunately, there is a procedure to allow them to not only choose who will take care of their kids but to also take the steps to secure their financial future.
First, let me start by saying that this is a subject that nobody wants to think or talk about. Nothing is worse than imagining a scenario where parents won’t be around to raise their young children. But tragic things do happen and responsible planning must be done beforehand to ensure that wishes are carried out with regard to children and their care and well-being.
In a situation like this, the best way for parents to be assured their children will be cared for according to their wishes is to create a will with clear and specific instructions relating to their kids. Until children reach the age of maturity, they need guardians to physically raise and care for them as well as to handle their money. Having a will that clearly sets out who these guardians will be ensures that you, not the courts, choose the most appropriate people to handle the task.
Although the will can be tailored in many different ways, the most common course of action is the parents choosing who they want to raise and care for their children should they both pass away. Quite often it is another family member, like a parent, sibling, cousin or even a close friend. If this person is onboard, he or she is clearly named in the will as the one who will be guardian of the children. Since there is always a chance this person may not be around or able to help when needed, it is always good practice to name a back-up, or alternate guardian, to serve.
If the time comes when the guardian is needed, he or she will officially take custody of the children and raise them as if they were the parent, with full power over the children in areas including their health care, schooling, residence and general day-to-day welfare and well-being. Basically, the guardian will raise the children in the same manner the parents had been before them.
Also in the will, we then dictate that if the parents both pass away, all of their money, property and other assets will be liquidated and the money held “in trust” for their children, to be used for their health, education, comfort and general welfare. Typically, the guardian who was selected will also serve as trustee (although it can be a different person) and will hold and manage the money for the children and use it for all of their needs.
Within the will, we also set the terms of the trust, listing the powers the guardian/trustee will have when managing the trust and also when the children, once reaching adulthood, will receive their share of the money. Some parents set the age at 21, some 25 and some when their children graduate college or meet another condition.
Once again, no one wants to think about this type of situation happening. However, creating a well-drafted, legally binding document with a qualified attorney, setting out the guardian and trustee of their minor children, can give parents peace of mind their kids will be well cared-for and financially secure in their absence.
Marc Page is an attorney with a general law practice in downtown Westerly. He is licensed in both Rhode Island and Connecticut and can be reached at 401-596-1726.