Choosing a guardian for your children: the Value Majority Test

Who finds it pleasant to think about their children being raised by someone else?  No one.  However, if you don’t tell the court who to appoint as guardian, then a judge you do not know, and who does not know your family, will decide for you.  Would your child prefer to have a stranger make that decision?  No.  This choice is yours to make.  Get paper, a pen, and try this approach.

  1. List everyone who is a possibility as guardian, even a remote possibility. This might include friends.  Single people.  People with no kids.  People with grown kids.  People who live far away.
  2. Next, take the Value Majority test. List five values that are most important to you, and choose candidates from your list who share at least three of these values with you.  This is my partial values list as an example to get you started:  parenting style;  attitude about education, work, money; faith, religion practices, beliefs; social values; attitude about closeness with family, friends.

 Now you should have a list of people who rank as good candidates.  You should choose at least three.  What if you have several people who meet the test and make good candidates, but you wish to shorten your list?  Here are some of my observations.  First, it can be disruptive to uproot children from everything that is familiar to them, so if Joe lives in your area but Jane lives across the country, choose Joe.  Second, a court might not approve a person you designate who has a history involving alcohol or drug addiction, or a criminal record, even if they do share three out of five of your values. Third, please do not name married couples.  Divorce happens to the seemingly best couples, and you do not want your child caught up in a custody battle.  If Mike and Carol Brady both share your values and made your list, choose one as guardian, the other as successor guardian.  Fourth, choose candidates who are likely to keep your children in touch with your family.

Trying this approach should result in at least a few guardian possibilities.  This issue is difficult to think about, but thinking about it is exactly what needs done.

Contact me at julie@juliemillslaw.com if you want to get started on a will to name your guardians.

7 reasons to review your estate plan now

  1. You have no estate plan!  I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney).  If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones.  This could cause unnecessary and unexpected costs, delays, and loss of privacy.
  2. If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan.  Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
  3. Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive?  Are they still capable of serving?  Do you still want them to serve?
  4. Review your beneficiaries. Review who you listed to inherit from you.  Are they still alive?  Do you still want to bequeath to them, or add additional beneficiaries?  You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
  5. Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.”  What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts?  What happens to money in your etsy or ebay store’s PayPal account?  Do you want your spouse to have access to your Facebook account at your death?  Or your emails?  These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
  6. Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless.  You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust.  You can fund while living, or set it up so that this funding occurs at your death.
  7. Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney.  Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.

If you would like to discuss your estate plan, contact me at julie@juliemillslaw.com.

Letters of Intent–More Information

I received several inquiries after my recent post on Letters of Intent, or instructions for guardians or caretakers of your children or pets.  I have specific forms I have developed for children, pets, and children with special needs.  If you would like pricing for those, email me at julie@juliemillslaw.com, or message me through my law office’s Facebook page.

Letters of Intent can be created by you (versus an attorney), and many parents have done just that.  These can be in-depth, broad, more limited–it’s up to you.  To guide you, here are links to three examples, all from moms who were dying of cancer:

  1. A simple, specific, instructional Letter of Intent, “Mummy Manual”:  http://www.dailymail.co.uk/news/article-346306/The-mummy-manual.html
  2. An in-depth, broad, far-reaching Letter of Intent with guidance:  http://www.telegraph.co.uk/news/health/news/10084492/Dying-mother-leaves-20-point-plan-for-happiness-for-her-family.html
  3. Letters written to child to be given at certain life moments, a series of Letters of Intent:  http://metro.co.uk/2015/07/23/mum-terminally-ill-with-cancer-writes-letters-to-her-four-year-old-to-last-a-lifetime-5308613/

What will be most helpful to your guardian?  What information will help your child the most?  The links to the different letters could be used to guide you in adapting such letters to specific situations, such as pets.

Send any questions to julie@juliemillslaw.com

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Letters of Intent–why your child or pet needs you to complete one

If you have started the process of planning for the future of your loved ones if something should happen to you, then congratulations, you have taken responsible steps that many people—estate planning attorneys included—have avoided taking.  You are probably thinking most about who would care for your children, even pets, if you can’t.  So, you decide on a guardian, or caregiver for your pets, and hopefully two successors.  You name them in your will.  Don’t stop there.

Do your guardian or caregiver, and especially your children or pets, the favor of easing their transition to this new life without you by completing a “letter of intent,” or caregiver guide.  A “letter of intent” gives information and details to your guardian or caregiver about everything from daily routines to hopes for the future.  Everything from food likes and dislikes, doctor names and extracurricular activities, to hopes for education, thoughts on values and religion.

“Letters of intent” for pets (sometimes called Caregiver Guides) detail health history, food preferences, and allergies.  Explain how the pet lived (crated at night or not?  Walked on a leash or more accustomed to fenced-in yard?), thoughts on parameters with euthanasia, and other aspects of the pet’s life.

The most important subject for a “letter of intent,” however, might be a child with special needs.  For many children with special needs, routine and familiarity are critical.  Children on the autism spectrum can struggle with the most minor change (a subjective term) in their day or routine.  Replicating a child’s routine as much as possible might reduce stress for a child with disabilities in adjusting to a different house, different people, different sounds and surroundings.  A “letter of intent” would give a guardian a greater ability to provide the things necessary to help the child cope, particularly by continuing the child’s daily routine.

If you have any questions about preparing your own letter of intent for the care of your loved ones, email me at julie@juliemillslaw.com.

If you died now, where would your kids go?

It is difficult enough thinking of dying, but trying to imagine someone else raising your children makes the thought even more difficult.  Every responsible parent needs to confront this difficult issue.

If you and your spouse (or the child’s other parent) died in a simultaneous manner, where would your children go?  If you do not have a will that nominates a guardian, the court will decide.  Do you want to let a judge who does not know you or your family, make this important decision?  For most people I know, that answer is “no.”

The most important step you should take is nominating a guardian for your children, and preferably two alternates, in a will.  Why is this important?  Your nomination will:

  • reduce the delay in appointing a guardian because the court will not have to consider factors and then make the decision;
  • reduce the potential for family disagreement among those seeking guardianship if no one is named, and spare the children of dealing with family discord;
  • provide for a smoother transition for children and family who are grieving;
  • avoid appointment by the court of people you believe are undesirable in raising your children.

Letting your children know who you have named might ease anxiety in situations where a parent is faced with a terminal illness or other medical conditions that might cause them to fear their future (where will we live?  Who will take care of us?) should a parent die.  I’ve seen children struggle with these worries more than usual with parents in the military, parents who travel frequently for work, or parents in high-risk professions such as first responders.

Death is a tough topic, but you must confront it if you have children.  Parenting involves making tough choices, including naming a guardian who’ll parent your children if you cannot.

Contact me at julie@juliemillslaw.com if you want to discuss nominating guardians for your children.

Happy National “Everything You Think Is Wrong” Day!

March 15th is National #EverythingYouThinkIsWrongDay.  Let’s celebrate by reading some things that many people believe, but are wrong:

  1. “Living together for 6 years means we are married.” No, at least not in Ohio.  Common law marriages in Ohio are recognized only if they occurred prior to October of 1991.
  2. “Contracts must be in writing.” Oral contracts are enforceable in many situations.  Exceptions exist, including most contracts for real property.
  3. “The United States Supreme Court has the final say of all laws in the U.S.” The U.S. Supreme Court is the final decider of federal laws and controversies involving federal law.  State supreme courts have the final say over state law.
  4. “I can’t be arrested for public intoxication if I’m on private property.” You can be standing on your front porch, beer in hand, and if you are creating a disturbance you can be arrested for public intoxication.
  5. “I don’t have a will.” You might not have prepared a will, but every state has a plan for your asses should you die without having prepared your own will.
  6. “I don’t need a will because my spouse will get everything anyway.” Not likely true if you had a child together, or you have children from a previous relationship.
  7. “My donations to a nonprofit are tax deductible.” In order for donations made to a nonprofit to be tax deductible to you, the nonprofit must have tax exempt status from the IRS.  Most commonly this is 501(c)(3) status.
  8. “If I’m arrested I’m entitled to one phone call.” This is partly true.  You have a right to one call to an attorney.  Generally the police allow an arrestee to call family or a friend but it is not a right.
  9. “The First Amendment protects your free speech from everyone.” This is a very common myth.  The First Amendment only protects your right free speech against the government, and even that protection has limitations.  People getting fired from a private employer for what they (employees) say is permissible, despite a hundred Facebook commenters lamenting that this person’s right to free speech has been violated.
  10. “If the house is in just my name, my spouse can’t get it if we divorce.”  Not true, typically.  Things acquired during the marriage are subject to equitable division and distribution.  And, equitable doesn’t mean equal, it means fair according to the judge.

What Does the Executor of my Will Do?

The person you name as the executor of your will has several duties after your death.  Generally, your executor gathers and inventories your assets, pays bills, distributes assets, pays final taxes, and closes the estate.  In Ohio, this process typically takes no longer than 13 months.

Ohio requires that the person you name as Executor be mentally competent, at least 18 years old, and bonded.  In my experience, most wills waive the bond requirement unless the executor is a resident of another state.  The executor submits the will to the probate court and seeks appointment to administer the estate.

Once the executor is appointed, he or she must take possession of and inventory the decedent’s assets, submitting a list of assets and their value to the probate court within three months after appointment as Executor.  The executor must locate all heirs and provide notice that they might be entitled to an inheritance.  The executor must notify creditors of the decedent’s death, pay bills, and collect judgments and monies owed to the decedent.  The executor is responsible for preparing and filing federal and state tax returns.  After bills are paid, the executor can distribute assets.  Finally, the executor will provide a final accounting to the court.

These duties can be affected by the value of the estate, beneficiaries contesting the will, and other factors.  An executor can be compensated for serving, typically 1-4% of the value of the estate.