Perhaps no other single estate planning issue is more important for parents than making the difficult decision about who will take care of their children if they are unable to care for them themselves. We have learned that for many parents the difficulty of making this decision, due primarily to their inability to select the right person for this critical need, often paralyzes them into not planning at all. We help such parents get over their planning paralysis by pointing out that their failure to plan for their children is itself a choice. By not planning, they are simply abandoning to strangers in a probate court the right to choose who will take care of their children. Loving parents overcome such fears and make these important decisions to protect their children.
How do I choose who will take care of my children if something happens to me?
In planning for children there are two main questions that one must ask. The first question is, “Who will take care of my children’s physical needs?” This is the role of a guardian. The second question is, “Who will be responsible for managing the children’s inheritance until they are mature enough to manage it themselves?” This is the role of a trustee. While the roles of a guardian and trustee are both important, they require different skills. In order to pick the right person for the right job, it is important to know the duties each performs.
What are the duties of a Guardian?
A guardian is responsible for caring for the physical needs of minor children or adults who are disabled. They make decisions involving basic needs such as housing, clothing, medical care, and schooling. For minors, the guardian is a person who will tuck your child in at night. For disabled adults, the guardian is the person who decides that they can be cared for at home or if their condition requires placement in a group home, assisted living facility, or nursing home.
How do I choose a Guardian?
Choosing a guardian for minors is perhaps the most difficult decision a parent has to make because it is nearly impossible to imagine anyone else doing as good a job as you would do raising your children; however, as pointed out earlier, if you do not choose a guardian for your children, a judge who has no personal knowledge of you or your children will decide who will raise them. Don’t allow yourself to become paralyzed trying to find someone who will be as good as a parent as you are. That person may not exist. Instead, focus on finding the best person available.
In choosing a guardian for minor children, it is important that you name someone who shares your ideas and values in rearing children. Ask yourself if you and the person you are considering share similar religious beliefs and attitudes toward parental discipline. Ask yourself they will give your children the same loving care that you give them and will seek to provide them with the same educational opportunities you would provide.
Another factor that must be considered is a proposed guardians age. A guardian must not be so young or old that they are unable to care for or cope with very young, adolescent, or teenage children. While age is an important consideration, a number of good candidates are often overlooked merely as result of their age. Age may be a deciding factor among equally qualified candidates, but it should not automatically disqualify an otherwise appropriate selection.
Many young parents operate under the false assumption that a guardian must be their age or younger. Age is often cited as a reason not to nominate grandparents or others as guardians but a healthy, loving relationship that already exists between children and a potential guardian is the single most important factor to consider when choosing a guardian. If you believe your child would receive love, nurturing, and care from a particular person, that single factor might outweigh any negatives such as age or relocation. In many cultures, the older members of extended families often help raise children. Moreover, grandparents who are overlooked might contest your appointment in court, especially if individuals from outside the family are named.
Also consider the proposed guardian’s ability to financially care for your children. If the guardian is not financially equipped to care for your children, it may cause an undue burden on the guardian’s family and lead to resentment against your children. For this reason, it is wise to consider leaving financial assistance to the guardian to help raise your minor children or to help provide for a disabled adult. You should also consider whether you would want your child raised by a single parent or married couple. If you name a couple, you should clearly state what you would want to have happen if there’s a death or divorce between the guardians.
Another factor that should be considered in selecting guardians is whether they have children of their own. If they do, ask yourself whether their children will be good playmates for years. Also ask whether parents who already have children of their own will be able to handle the additional burden, especially since your children may have emotional problems that will require a lot of individual care and attention. Because of these issues, you should not automatically rule out individuals whose children or are already grown or who have no children. Sometimes a family with children may better serve as a support network in which all the children can remain friends rather than become sibling rivals.
All the above issues should be thoroughly discussed with the proposed guardian in order to make sure that the person you select is qualified and to make sure he or she is willing and able to serve. Also, in addition to the primary person you would like to serve as guardian, it is always a good idea to name a backup in case the first person selected is unable to serve. This person is known as a successor guardian and can serve if you decide to replace the primary guardian or if the primary guardian is unable or refuses to serve when needed.
How do I nominate and replace a guardian?
You may nominate a guardian for your children in your will. Wills are the legal tool used because the guardian appointment is officially made in probate court. For this reason, individuals with minor children who plan their estates with a living trust should have a will drafted to nominate a guardian. Since guardians are nominated in a will, the nominated guardians can be replaced simply by signing a new will that nominates a new guardian. Accordingly, a guardian can be changed at any time prior to the disability or death of both parents. After the death of both parents, the guardian can only be changed by court order. Therefore, the appointment of guardian should be reevaluated on a regular basis as your family needs change and the needs and circumstances of the nominated guardian change.
Once a parent has decided whom to appoint to take care of a child’s physical needs, it is next necessary to decide who will be responsible for managing the child’s inheritance until he or she is mature enough to manage it. As stated before, this is the responsibility of a successor trustee who starts managing the trust if the parent becomes disabled or dies.
Is it important to name a successor trustee?
It is important to name a successor trustee to prevent the family from having to go through court proceedings to appoint a new trustee if the trustmaker is no longer able to serve due to disability or death. The trustmaker should discuss the appointment with the person to be named so that the person will be aware of the duties and responsibilities of a successor trustee when the trust maker can no longer serve.
What are the duties and responsibilities of a successor trustee?
A successor trustee’s most important duty is to implement the trust’s instructions concerning how the trust property should be used to aid the beneficiaries. Whereas guardians decide how to take care of a beneficiary’s physical needs, the successor trustee decides how to use trust assets to pay for those needs. Among other responsibilities, as successor trustee has the following responsibilities:
- Making an inventory of trust assets;
- Protecting trust assets and making sure they’re properly invested;
- Preparing an accounting for beneficiaries;
- Implementing the trust makers instructions as to how assets are to be distributed to the beneficiaries or otherwise used for their benefit.
The successor trustee need not make these decisions alone. The trust should authorize the successor trustee to obtain whatever professional services are necessary to carry out the trust instructions. Such professionals may include investment advisors, attorneys, insurance agents, or certified public accountants.
Each state has statutory guidelines that regulated trustee’s responsibilities. Trustees must use reasonable business judgment in the investment, management, and diversification of the trust assets, taking into account the needs of the beneficiaries. Additionally, trustees must not allow trust assets to be wasted or invest money or other property in speculative or other imprudent investments.
Who can I select to be a successor trustee?
A successor trustee can be any adult. Possible candidates include family members or friends. Alternately, the services of a professional trustee can be used. These include attorneys, certified public accountants, and trust companies or the trust department of a bank. Selection of a trustee is an important decision and each alternative has advantages and disadvantages.
What are the advantages and disadvantages of selecting a family member or friend as a successor trustee?
An advantage of selecting family members or friends as successor trustees is that they have personal knowledge of the family. Their knowledge of the true needs of the beneficiaries can prove valuable. They can also generally be trusted to act in the beneficiary’s best interest and usually will serve for little or no fee. The disadvantages of family members or friends serving as successor trustees is that they may make decisions on an emotional, rather than objective basis, and they often lack the financial skills necessary to invest and manage large sums of money.
What are the advantages and disadvantages of selecting an attorney, CPA, or financial advisor as successor trustee?
Professional advisors, such as attorneys, CPAs, or financial advisors generally have expertise in finances and knowledge of the legal requirements of trust management. They also usually carry professional liability insurance that financially protects your beneficiaries if mismanagement of trust assets occurs. What professional trustees possess and financial and legal expertise they lack in knowledge of the trustmakers family and goals and, with their professional skills come higher fees. Even so, higher fees should not necessarily be a determining factor in choosing a trustee. A professional’s fees are often more than compensated for by their ability to obtain for beneficiaries a better return on trust investments.
What are the advantages and disadvantages of selecting a corporate successor trustee?
Trust companies or bank trust departments have substantial expertise in serving as trustees, are highly regulated by state and federal agencies, provide professional financial management, and have the financial resources to pay for costly mistakes. The disadvantages of corporate trustees serving as successor trustees, as with other professionals, include their higher fees, their lack of knowledge of the trustmakers family, and the fact that they are often seen as uncaring and dispassionate. Including instructions in the trust that permit the trustee to be replaced if appropriate can mitigate some of these disadvantages.
How can a trustee be replaced?
The trust maker of a revocable trust can change a trustee at any time prior to his or her disability or death by amending the trust to name a new successor trustee. The trust can also include instructions that outlined the circumstances that allow a successor trustee to be removed. For example, the trust may provide that a majority of the beneficiaries can appoint a new successor trustee for specific reasons or for no reason at all. Also, there does not have to be just one successor trustee name. Multiple successor trustees may be named to serve simultaneously.
Should more than one successor trustee be named?
The decision to choose more than one successor trustee to serve simultaneously may be based on several factors. Often one person possesses all the necessary skills to serve alone. If this is not the case, co-trustees can be appointed, and trust responsibilities divided between them. For example, the trustee that personally knows the beneficiaries best can be assigned the responsibility of deciding when to distribute the trust assets for their benefit. The trustee that is most adept at financial matters can be assigned the responsibility for deciding how to invest trust assets. If co-trustees are appointed, the trust agreement should state the specific responsibilities of each trustee and how joint decisions are to be made.
Another benefit of naming multiple co-trustees is that if one of them resigns, becomes disabled, or dies, the other co-trustee is already in place to continue the trust administration without any interruption. Without this protection, the beneficiaries must deal with the burden of deciding whom to appoint as a successor trustee.
A financial benefit of naming co-trustees is that they can monitor each other so that trust assets are managed and distributed as the trustmaker intended. Many believe that it is simply good policy to make sure that multiple individuals are jointly responsible for the trust administration so that it can help prevent the mismanagement, misuse, or theft of the trust assets.