RETIREMENT & ESTATE PLANNING DOMINO THEORY
Scott F. Barnett, J.D., LL.M., (Taxation)
WHAT ABOUT MY OWN KIDS?
Kids are also involved in the Dominoes of your planning –
Even if they don’t know yet quite how to play the game well.
Nothing is more important for a parent than to know they assured the welfare of their children. That welfare may be needed if, God forbid, your minor are left alone in the world. What will happen to them? Who will take care of them; have authority to get them their shots and into school?
There are laws that deal with this. Ultimately, someone can step in also in this situation and Petition the Court to Name a Guardian for the child. Until the Court makes that appointment, the State child welfare people may step in and put your children into foster care until a decision is made. So, it is important that the Court can quickly name a Guardian.
But what if the Judge does not know who the Guardian of your children should be? What if more than one of your relatives wants to be the Guardian? The statutes created by the Legislature of your state list who has the priority right to be named. Of course, the Judge decides if that person could be a Guardian; but, not necessarily the best Guardian.
That means the Judge might not appoint who you think would be the best Guardian for your children. What can you do? Well, it’s easy enough.
The Domino needed here is your Last Will. One of the purposes of having a Last Will is to “nominate” the people who you believe would be the Guardians of your children. This is the way the law makes available for you to tell the Judge (remember that you are no longer around to tell the Judge yourself) who you want as and believe is the best person or people to serve as Guardians of your children.
And the Judge will “listen” to your wishes. The law says the people you nominate in your Last Will (or other qualifying document) have the highest priority to be named as Guardians of your children.
Now, the Judge is not required to blindly pick the person you nominate in your Last Will. What is in the “best interests of the child” is always the overriding standard and rule in all this. That means if the person you nominated has since had a change of situation making them unsuitable, the Court could pass over them. If you wrote your Last Will long before your nominee developed a substance abuse problem; the Court can override your nomination. Then the statutory lists of preferences kick in again. However, a Court is hard pressed not to name who you nominate unless there is some very strong objection such that naming that person is clearly NOT in the “best interests of the child.”
The result of all this? One of the most important Dominoes you want to make sure lands where you choose, is the Last Will with your nomination for who would be the Guardian of your children. In another blog post we will go through how to pick who you nominate for the Court to appoint. We will also, in another post, go over the best ways to leave money for your minor children. Most people would not want their kids to get a lot of money when they become the age of majority (when they are a legal adult in the eyes of the law; which is 18 years old in Florida). Watch for those posts in the coming weeks.
NEXT TIME: HOW DO I GET THE DOCUMENTS I NEED?