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Does guardian have access to estate to support kids?
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Anonymous
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Hi all,
My husband and I have a will that we did ourselves (with Nolo software, I think). I feel confident about how the will is structured in terms of the medical directive, having a guardian in place for our kids in case we die, and a custodian for the financial assets that we would pass to them if we die. However, one thing I have never been clear on is how/whether the guardians can access funds to support the children until they are old enough to receive their inheritance. Does anyone know how this works? We have designated my sister to be guardian of our children if we pass away, and I would want her and her husband to have access to the assets to care for the children - they have kids of their own and not enough money to comfortably support our two children in addition, plus I would not want them to have to do so. I am talking about having access to money to feed, clothe and house them, any tuition costs prior to college, etc. I don't want to have a situation where they would be financially strapped because of a mistake that we made. I trust them completely in terms of not abusing the funds or using them for any other purpose. Currently, the will is set up so that my sister is the legal guardian, and the kids' grandfather is custodian of the assets until they are 18. My brother-in-law is the alternate custodian of the assets. We did it this way rather than designating my sister both legal guardian and custodian of the assets because it seemed like it might be more of a burden for her to have to manage the assets also - she and her husband are very busy; my father-in-law is retired. However, I don't know if her being the custodian also would actually make it easier for her to access funds to care for the kids? Perhaps we should reconsider this? We have a fairly modest estate, nothing complicated. I don't want to go to a lawyer and pay for the whole will and estate planning process because I don't think it's necessary in this case - I don't think we need a trust, our estate would not trigger the death tax, etc. But I am uncomfortable with not knowing the answer to this question. Can anyone advise on this and/or point us in the right direction as far as getting some legal advice on this specific issue without paying $1000 + to re-draw our will? Thanks so much! |
Anonymous
| Sounds like a weird set up - if she's not the custodian of the assets, then why would she have access to those assets unless the custodian gives them to her? And if there's a falling out between her and the custodian of the assets, sounds like a recipe for disaster. If I were you, I would consult an estate lawyer. (I'm a lawyer, but I wouldn't try to draft my own will.) Don't be cheap about this. If you have enough that you are able to leave assets for your children, then you have enough to drop 1k to make sure those assets are properly preserved for them in the event of a tragedy. If you find a small firm or solo practitioner, you could probably get the documents you need a la carte rather than paying to have everything re-done. |
Anonymous
I agree with this. In our wills, we have one person as guardian and an entirely unrelated person as custodian of the trust assets. I would never designate an in-law as anything. Divorce happens. I am a lawyer and in fact practiced in this area for awhile in another state, but I would never in a million years do my own will. Never. There are too many potential pitfalls. You need a professional. These are your children you are talking about. |
Anonymous
| Another lawyer here and totally agree with PP. I would not have tried to draft my own will and I think it's risky to do it online. That said, the answer to your question is that the custodian, at least if he's a trustee (did you at least place those assets in trust), has full power over the assets. You can and should give him guidelines as to how they should be spent, but ultimately it's his choice. |
Anonymous
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I can't give you legal advice, but offhand your setup sounds fine to me. Yes the guardian of the children will have to ask the custodian of the assets for any cash she needs, but she wouldn't have to manage the assets herself. Many people prefer this kind of arrangement because it splits the responsibility (both as a matter of workload and as a matter of an extra set of eyes on things). In fact, it sounds like 14:41 has just this kind of setup, and is actually disagreeing with your choice of asset custodian. A good lawyer will probably have you think more about "what ifs" (such as "what if they get divorced") but I think a Nolo will is a workable substitute.
FWIW I'm a lawyer and also did my own will with Nolo (and also named an in-law as custodian of assets). |
Anonymous
| OP, you can probably find a solo to do this for $500 or less if it is as simple as you say. I am also an attorney, but would not draft my own will. |
Anonymous
| My husband and I are attorneys, we would not draft our own wills. Found a solo to do it for us for $500. |
Anonymous
| I am not an attorney so maybe I think law is more complex than it is. OP, you did your will online and are now on a parents forum asking for legal advice to make sure your kids future is secure. Is this really where you want to save money? |
Anonymous
| OP, I have an appt with an attorney because, I want my assets to go into a trust to be distributed by the trustees to the guardian(s). You don't want to just hand some guardian your estate; they may or may not guard it wisely. Separation of powers an checks and balances - that's what a trust is for. |
Anonymous
| OP here: several of you mentioned that you thought I could probably get a solo lawyer to do the necessary work for about $500. I would be grateful if anyone has a recommendation for such a lawyer? I would prefer someone in the Silver Spring/College Park area, or not too far from there. Thanks. |
Anonymous
| Consider that if your estate is really that modest, perhaps you should get some life insurance? Our assets are so-so, but with life insurance, there is a substantial amount of money that would need to be managed. |
Anonymous
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OP, glad you are looking for a good lawyer. Micah Salb is often found on the DCUM listservs--you might want to google him.
You do NOT want to have your estate tied up in probate and have your guardians fighting for resources for your children. |
Anonymous
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OP again - 14:21 - good point, yes we do have life insurance. I am a SAHM so we opted to get it for my husband only.
Returning to earlier points, I do think that it is good advice not to have an in-law be the alternate custodian for the assets - I had been thinking that either my sister should be the custodian of choice, or that she should be the alternate if my father-in-law passes away or is not able to serve. I do not have any concerns about either of them not working with each other, or ever doing anything that was not in the best interest of the children. It's more a matter of practicality - who has the time to deal with it vs. what will make it easiest for my sister. |
Anonymous
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14:24 here.
Please consider getting life insurance for yourself--think about what it would cost for DH to hire a nanny, housekeeper, etc for every year until DC goes away to college. Also, DH may want to take a sabbatical from work for a few months, so the insurance would help to cover expenses. |
Anonymous
eh, most widowers with young kids are remarried within 2 years, so you needn't overestimate. Of course, you need to think about your dh spending all your kids' college money on his 2nd family, not sure what you can do to prevent that. |