NEW YORK – It's highly unlikely that you will ever need it, but no decision is more important or difficult than choosing a guardian for your minor children in the event both you and your spouse should die.
The choice generally has to be made in a will, so if you don't have one, find an attorney and write a will.
Picking a guardian comes down to finding someone you trust and who will accept the job. Don't spring the decision on a friend or relative because they can decline the responsibility after you're gone. Common choices for guardians are uncles and aunts, family friends or even grandparents.
"Plan Your Estate," from the Nolo series of do-it-yourself legal books, recommends naming an individual, even if that person is part of a couple, in case they later split. But Fred Sanders, a partner in the law firm of Morea Schwartz in New York, who specializes in estates and taxes, says the chances of a problem are remote and most clients name couples to steward their children if they die.
Once you've decided who will raise your children, you need to transfer sufficient assets from your estate to aid in their upbringing and select someone to oversee that money.
The Nolo book says you should generally choose the same person to look after your children and their funds. Sanders counters that 60% of his clients pick someone else to watch after the money, even though that creates the potential for conflict between the two parties.
As a trustee, his clients typically designate a friend who is a lawyer, banker or other professional with relevant experience, or name their family attorney, accountant or a bank. The thinking is that a couple who may make great substitute parents may also make poor money managers.
Remember to designate alternates for both guardians and fiduciaries in case they're not up to the task.
You can give your property and money to your kids outright under the Uniform Gifts to Minors Act, but a trust is a better idea, says Sanders. It will cut down on court and administrator's costs, and you can keep your money out of your children's hands longer if you feel they may not be ready to handle a large sum when they reach majority, at 18 or 21, depending on the state.
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