While estate planning is an important process for everyone, regardless of background or current life standing, it becomes more crucial for those with children. Parents will always want to make sure their children are protected, supported, and well taken care of. But without an estate plan, they are leaving the fate of their children in the hands of others.
Attorney Philip Ruce of Stone Arch Law returns to WCCO to provide tips and answer questions on estate planning for children. From guaranteeing financial support and guardianship to storing and updating estate planning documents, he covers it all in this interview.
Key Discussion Points
The Essence of an Estate Plan for Children
An estate plan is basically about ensuring that a person’s assets are distributed to the right people, at the right time, in the right way, and for the right reasons. It involves very personal decisions that parents have to make — decisions that reflect their values and wishes for their children.
Without an estate plan, the default rules of intestacy statutes come into play. And while this is a good measure to ensure that a person’s assets are distributed and their affairs are handled even without an estate plan, these default rules don’t always work in their favor.
The best thing parents can do is to make sure they are making their own rules, especially when it comes to protecting and supporting their children. This allows them to retain control over decisions concerning their inheritances, physical care, guardianship, and more.
Guaranteeing Guardianship for Children Through an Estate Plan
Any parent would want their children to be watched over and taken care of by someone they trust and have confidence in. Choosing this person to become their children’s legal guardian is something they can control through an estate plan.
Without one, the court follows the default rules of intestacy statutes to appoint a guardian. And this can be someone the parents don’t have a good relationship with or who they don’t trust. This is terrifying for a parent to find out.
Getting an estate plan in place will help parents control the decision of who becomes their children’s legal guardians. Intestacy statutes prioritize the person named in the will, giving parents the opportunity to name someone they trust.
Who to Choose as a Legal Guardian for Young Children
For most people, their parents are first in line to get legal guardianship of their kids. They trust them the most and often share the same values, so they are seen as the best choice to take care of young children. However, Attorney Philip Ruce warns that people need to be a little more careful in doing this.
Just because naming their parents as legal guardians is the best choice now doesn’t mean it will be later on. They should look ahead and picture a situation when the children turn 18, for example, and are being cared for by someone who is above 90. This might not be the ideal situation in the long run.
So at the very least, backup guardians should be named in case the first choice is unwilling or unable to take on the responsibility. It can be their cousins, siblings, friends, or anyone who shares the same values. In Stone Arch Law, two backups are always named in the estate plan.
Health Directive vs. Estate Plan
Estate planning doesn’t only involve planning for what happens after a person dies. It also considers situations when they become incapable or incapacitated to make important decisions during life, such as in the event of an accident, sickness, or injury.
This is where the health directive comes in. An element of a complete estate plan, a health directive provides instructions on how a person’s affairs should be handled, including plans for the physical care and financial support of their children.
Understanding Legalese in Estate Planning
Estate planning may come off as simple and straightforward, which leads to many people thinking that they can simply create a document that dictates who they want their assets to go to when they pass away and names guardians to take care of their minor children.
But the process is actually more complex than that. Estate planning involves a lot of legalese. The documents need to read a certain way, telling the court what the final wishes are and how they should be carried out.
DIY wills and professionally drafted wills are incredibly different, and the latter is always the most effective. Working with an estate planning attorney can help parents through the process, leading with education and helping them understand what needs to be done. An attorney can clarify legalese and ensure that the language of the estate plan is clear and can yield an accurate outcome.
Storing Estate Planning Documents
An estate plan cannot be prepared and just stacked away with a huge pile of other unimportant paperwork. It needs to be stored properly to avoid the risk of losing it. Otherwise, the family will not be able to find it come time to execute its provisions.
Work With Professionals
If parents work with estate planning attorneys to draft their will or revocable trust, the firm will have records of it somewhere in their books. At Stone Arch Law, estate planning documents are scanned, encrypted, and signed to ensure that they are available when they become needed.
Communicate Within the Family
Another important thing to do is to communicate the estate plan to the family. Simply telling them where the documents are and how to access them will go a long way to ensuring the estate plan is retrieved when the time to implement it comes.
Updating Estate Planning Documents
A lot of people think that estate planning is a one-time affair — after all the documents have been written, it’s done. But this will not provide any peace of mind to the parents, especially several years later when their lives, their values, their needs, their families, and the laws change.
Attorney Philip Ruce recommends that estate planning documents are updated, redone, and amended at least every 20 years to reflect new priorities and big life changes like marriages, divorces, new children and relatives, etc.
Risks of Not Updating Estate Planning Documents
The purpose of an estate plan is to override the default rules of intestacy statutes and give people more control over their assets and how they are distributed. But if there are ambiguities in the estate plan, such as references to people who have died, relationships that have fallen out, or the non-inclusion of new family members, it doesn’t fully serve its purpose.
These ambiguities will be thrown out by the court and replaced with the backup rules on intestacy statutes, whether they reflect the wishes of the deceased or not. Hence the importance of keeping estate planning documents updated. Doing so will help provide peace of mind that the documents were done properly and according to the deceased’s wishes and values.
More Resources on Estate Planning for Children
Stone Arch Law provides resources that talk all about estate planning. Anyone interested in learning more about it can go to stonearchlaw.com to access videos and downloadable materials. If they wish to get started with their estate plans or have further clarifications, they can always make an appointment with the firm’s attorneys.
It’s now 7:37 here at WCCO. Welcome back. We’re here to talk about ways that you can protect your children when it comes to estate planning. Now, we have talked about estate planning for females, for women who may be single, and how they can get started with it in so many different ways, but for children, that’s a whole different story.
So I hope you will really pay attention tonight because we know that parents who do just about anything to protect their children would absolutely care about estate planning for them. For parents without a plan, this leaves the fate of their children in the hands of others. So to help avoid that, local attorney Philip J Ruce from Stone Arch Law is joining us with tips to protect our children with estate planning. And he joins us on the John Schuster, Coldwell Banker hotline. Hello, Philip.
Philip J. Ruce:
Hi, thank you so much for having me back. Good evening.
Oh, it’s great to have you back. Okay. So we’ve talked about women and so much more when it comes to making sure your children are taken care of. Is that a whole other piece of itself like set aside or when mothers are, as single mothers are trying to do their estate, are they being told it’s important to make sure your children are protected?
Philip J. Ruce:
Right. And I think it all does sort of extend from each other. I mean, these are all going to be interrelated on some level. An estate plan for anybody, for whatever reason you’re creating it, is really to make sure that your assets are being distributed to the right people, the right time, the right way for the right reasons. And that can be anything it’s a very personal decision.
I think when it comes to parents in particular, whether your children are adults, or if they’re very young children, we want to make sure that’s being distributed in a way that reflects our values. There are some default rules out there that don’t always do what we think they do so we want to make sure that we’re creating our own rules for what happens, for our money, and for our kids. And of course, when it comes to young children, we have that added concern about who would actually provide physical care for these young people, who would be the guardian of them.
Exactly. And a health directive does that for us. If we want to make sure that our wishes are made and done near the end of life, or if you’re just going through a very difficult time, of course, you want to make sure you have that health directive.
This is the same thing, except this is about having your wishes clearly communicated when it comes to your children. Is that the definition of it? Is that how we should simply look at it?
Philip J. Ruce:
That’s a great way to put it. I’ve never really thought of it that way, that what we’re doing in some ways is, I do a healthcare directive for myself so that my physical care is taken care of without having to involve the court system.
And the reason we appoint our guardians is if something happened to, for example, I have three very young kids, they’re all under five years old. If something happened to my wife and me, we also want to make sure we’re reflecting those values, not just for the physical care, but for the care of the money as well. I think that’s very accurate.
Well, some of the challenges that we hear from my friends, especially the women in my life are, what happens if I lose my estate plans? Where should I keep it? If I lose it, then who do I go to? Will the laws change several times? Let’s say, if you lose it 15 years later are the laws still the same?
Philip J. Ruce:
So first off I would commend those individuals because that means they did some planning. So they did realize that these defaults, these backed-up laws aren’t enough, and they don’t do what they probably want to do.
So they’ve created some sort of plan, they’ve created a will document, they’ve created the will’s close cousin, which is called the revocable trust. I think they might touch on that a little tonight. So what happens if you created those documents and then they’ve disappeared? And we do run into that. So what’s very important with this is, first off, whichever attorneys, but this is much better if it’s been done professionally.
The law office where it was created probably has records of what happened. Our office here at Stone Arch Law Office keeps scanned, encrypted, and signed copies indefinitely. But also I think within the family, it’s important to communicate that you have a plan and make sure people know where it is.
We like to make sure that folks have an electronic copy with their financial advisor if they have one. If not, we do send them electronic copies for their own cloud-based apps or to share with the family if they’re comfortable with that. So part of it’s going to be communication.
Okay. So when you have a will or something like that, you automatically just kind of breathe and sigh and smile and go, okay, took care of that, check that off. And then you think that it’s taking care of itself, but like an estate plan, it isn’t. Correct?
Philip J. Ruce:
Right. What we try to do here is we want to focus on that piece of mind. Sometimes it’s not the same thing, but sometimes I get a comparison to maybe life insurance. It’s not pleasant to think about getting life insurance. It’s not pleasant to think about the process but when it’s done, you sigh and you say, like you said, okay, this is all right, check. That’s a very, very important thing to have done and it’s done.
And I think that’s what the families with whom we work at when they finish this process is, I like to think we make it easy and very approachable, but even so when it’s done, things are signed, check it off. And then it is important to make sure it’s tracked and updated. We don’t want to keep, want things to get too stale.
There’s a very lighthearted rule of thumb that we use. You mentioned rules changing. Yes. A will document is a court document. A will document is a letter to a judge that controls the probate process that submits this administrative court proceeding, where our stuff is distributed and creditors get to make claims against an estate.
We don’t want to submit 20-year-old court documents. We want to make sure these are updated and that they reflect, not just the laws, but our own values on our changing family. So we usually tell folks that if your will document is 20 years old, you just need to redo it. Don’t amend it, don’t change it, don’t hope for the best, just redo it every 20 years.
And that’s good. I mean, it means the last 20 years, usually by default. Of course, if you’ve had other big life changes, marriages, divorces, that by itself probably indicates an update. But keep it up to date, keep it fresh and make sure that you maintain that peace of mind of knowing that your family is cared for.
What happens if you don’t, though? Does that mean you may not get everything you thought you were going to get?
Philip J. Ruce:
Right. So, there are a couple of things that can happen here. So first off I’ll address an aging estate plan that just wasn’t updated. Typically speaking, whatever is in the will document, and I’m using the will as an example, there are a couple of tools we can use, but I’ll just talk about a will.
A will document is overriding these default estate statutes. There are these default rules out there that everybody gets. If you don’t have a plan, you’re getting the state rules, that is your estate plan. It probably doesn’t do what you think it does. So what we’re doing is we’re overriding those with our own values, our own wishes, and that’s a will.
So what has happened then is if the courts like to see things happen a certain way, they have certain requirements. If you have an old will document that’s 25 years old and it was done properly, and it was signed properly with the appropriate witnesses, notaries, etcetera, you do all the formalities, it will still get admitted.
But once it’s admitted, now what’s going to happen? And we have seen so many ambiguities in these plans. We’ve seen so many references to people who have died or there’s just been a falling out, or they only named two kids but now there are six kids or there are grandkids, or the charity that they want to give money to doesn’t exist anymore.
We just got to be very careful of that and when we’re dealing with something, that’s going through the court system, a court document, we just got to be careful. If it’s too ambiguous we may have to throw these provisions out of the will document and use these backup rules, which again, you may not even know what they say instead. So keep that document updated.
The other thing, and probably the more common thing is folks just don’t have a plan. And if they don’t have a plan we’re going to use these, again, these backup rules that if you don’t know what they are, are you comfortable with that being your estate plan or should we do something about that?
The cost of estate planning has skyrocketed. I know people who got estate plans done decades ago and all of a sudden you want to update it or you want to look at it and say, yeah, yeah, yeah, I want to make sure I add this and add that and the cost has gone up quite significantly. Right?
Philip J. Ruce:
I think it has. I think that, and it depends. There’s a range of things to do because if we’re looking to just make sure we’re controlling the probate process, I’m not ever going to say that lawyers are inexpensive, but it depends on how elaborate we want to get with the plan.
There are plans that are, I don’t know. I mean, a few hours of a lawyer’s time, depends on how that lawyer calculates that time. But there’s certainly, if you go, especially to some of the really large law firms, there are some estates that are multimillion-dollar estates with dozens and dozens of people involved. And there are these $30,000 state plans that are unlikely for most people.
The people listening to this broadcast, my family included is probably not there. But what we’re focusing on again, is going to be that peace of mind. So is there value in knowing that we’ve done this in a way that reflects our family and because it was done by a professional, do we feel, and do we know that I can rest easy at night, that this was done properly? And sometimes maybe we want to invest a little bit in that process.
Yeah. So now you suggested if you have children and no estate plans with named guardians, a judge will choose who watches over your children. That could be someone who you wouldn’t have chosen. That’s absolutely terrifying for a parent to read.
Philip J. Ruce:
It is. There’s a statute. So the statutes, these default rules, spell out everything. They spell out every possible possibility. You’ve had numerous marriages, you’ve had kids with previous people, or it’s all been in this same family, whatever it is, the statute has something that’s going to happen in that scenario.
And if you don’t know what it is, you don’t know what it is. I mean, you may not know what you don’t know. So who’s going to care for my children when we’re talking about who should care for kids, that is something that can be appointed directly in the will document. So what the statute says is the first priority, is whoever’s named in the will. So if you have a will, this is your opportunity to make that decision about who will care for my young kids.
The most common one that we see is we see young parents, so these are people again for young children, naming their parents to care for their kids. And that’s a great choice. There’s nothing wrong with that at all. That’s probably actually a very good choice and probably some shared values there. We always got to be a little careful though.
One thing that you are allowed to do is you’re allowed to say, I nominate these people as guardians of my minor children. If they’re unable or unwilling, then you can name a backup or another backup. And then as many as you want, and we like to see at our office here at Stone Arch Law, we like to see at least two backups.
We like to see the main person you’d like to have serving and then two more. And in that chain, we probably want to have at least someone in there who is of your generation. So for example, my wife and I started a little later in life, having kids, we have these young kids, my parents are in their early seventies, and my wife’s are too. And you can picture, an 18-year-old being cared for by people who are 90. And is that an ideal situation?
And that might not be, and perhaps we won’t make sure that somewhere in line there, we’ve got a sibling or a close cousin, or even some close friends you’ve talked to who maybe share your values.
But here’s the thing, it used to be that you would have your children christened in church, and then you would have the godparents say, yes, I will take care of the child and make sure that all their needs are met according to what you have suggested or demanded. And nowadays you don’t even know who the godparents are. And by the way, I don’t even have one. So, we don’t do that anymore. Now we have to deal with a lot of legalese and that’s a whole new ballgame. Tell us how we can get an understanding of what this writing is in this important document called the estate plan?
Philip J. Ruce:
Right. I think that there are a couple of things we want to make sure we’re doing here. It comes to young kids. So first of I’m going to advocate working with an estate planning attorney, and I know this can come off as biased coming from an estate planning attorney, but I’ve seen plans that are, do it yourself, versus those that are done by someone who does this sometimes versus a dedicated estate planning attorney. And they end up being very different plans.
If you’re working with someone who does this regularly, they’re probably, or at least I would hope they would lead with education. So they’re going to lead by helping you understand what it is we’re going to do. The documents do have legalese. The reason for that is because these documents are talking, you’d think they’d be talking to your family, but they’re not. They’re talking to the court. So they’re using court and lawyer language. And that’s just the way it is because those things do mean very specific things. And…
It doesn’t have to be just the way it is. It doesn’t have to be. No seriously, because so many people make so many mistakes when it comes to legalese.
Philip J. Ruce:
So it’s important that we understand. You know that words matter, you are very clear on that. And so if I’m in sitting in an office with you and you’re telling me, or trying to explain something to me and I say to you, I don’t understand that, no, no, no, I don’t understand that. Then we should stop until there is an understanding.
Philip J. Ruce:
Absolutely. The words of the document might need to read a certain way depending on what is that you want to happen. Because again, the audience for this thing is the court system and it has to read for them. But that doesn’t mean that you have to just blindly accept that this is something that I don’t understand.
If you’re working with an estate planning professional, they’ve probably heard your question before or something similar to it. And if they haven’t, they still are going to have a fairly in-depth understanding of what every sentence in this thing means. So if you are working with a professional, do stop that conversation and ask for clarification.
Philip J. Ruce:
Ideally, that professional’s walking you through this in a way where these are clear as you’re going, but absolutely you wouldn’t want to talk…
I want a law. I want us to have a law that says you cannot deliver legalese. You really… Unless you make sure that the people understand it. I am so sorry that we have run out of time, Philip, but thank you so much for joining us tonight. And if people want to reach out to you, where do they go?
Philip J. Ruce:
They go to Stone Arch, like the bridge in Minneapolis, stonearchlaw.com. We have a number of videos and downloadable resources that they’d like to connect with us. They can certainly make an appointment with the team if they have questions. And we’d love to hear from them.
I really appreciate it. You take care.
Philip J. Ruce:
You too. Have a wonderful night.
Thank you. We’ll be back.