If you have minor children, selecting who will ultimately be in charge of your children if the need arises is perhaps the most important question to answer in estate planning.
While there is no substitute for you as a parent, a guardian is someone who steps in if neither parent is available, assuming the parental role and raising the child until 18.
A trustee, on the other hand, is in charge of managing the financial affairs for the child.
Who Makes a Good Guardian?
When choosing a guardian, the top factor to consider is who is the best person that will love and raise your child in a manner that you would. This includes parenting style, location, religious beliefs, interest in extracurricular activities, energy level, and whether or not he or she has children already. A guardian will provide day-to-day love, care, and support for your child.
Who Makes a Good Trustee?
As the name implies, when choosing a trustee, the most important considerations is that he or she is great with finances and trustworthy. Specifically, the trustee must be able to manage the funds in accordance with your intent and instructions that are left in the child’s trust. Consider whether he or she will honor your wishes. In short, you want to choose a trustee who will act in your minor child’s best interest within the limits you have set forth in your estate plan documents.
So Should the Same Person Serve In Both Roles?
It is not necessarily a bad idea to have both the guardian and trustee be the same person. However, if you wish to provide more checks and balances over the money you leave to your child, having a different person serve in each role may be preferred. If the guardian and trustee are separated, when the guardian needs trust money to pay for your child’s various expenses, the guardian will have to ask the trustee for those funds and the trustee will either allow or disallow the expense based on the trust terms. If the same person is serving in both roles, obviously you don’t get that benefit. Maybe this concerns you; maybe it doesn’t.
Also, if you choose two different people for the role of guardian and trustee, make sure to consider how the two get along as they will likely have to work together throughout your minor’s childhood and possibly into adulthood. Using a different guardian from the trustee will require cooperation with a common goal of doing right by the child while complying with your instructions in your estate plan.
Seek Help to Make Your Decision
While estate planning can be daunting, it does not have to be. Contact a knowledgeable estate planning attorney to help guide you through this process. We can explain your options and advise you on the best plan that will follow your wishes while at the same time meeting your family’s needs. I strive to make the process as painless and seamless as possible.
Contact McCarthy Law Office to get started on your estate plan today!
As the calendar turns to December, the end of 2020 is in sight. Finally. As we prepare for the holidays and a new (and hopefully healthier) year, here are some things that should be on your end of year checklist:
- Complete your estate plan. The end of the calendar year can serve as a great deadline and motivator to end procrastination and complete the long-planned but never completed estate plan. Do not let the fear of making wrong decisions stop you. Documents can always be amended or revised if your life situation or desires chance.
- Review and update your current estate plan. If you already have an estate plan, is it up to date? Family, personal, and financial circumstances change throughout your lifetime. Major life changes, such as marriage, divorce, births, deaths, moving to a new state, or new wealth are just some examples of events that should trigger a reevaluation of your estate plan.
- Check your beneficiary designations. Certain assets pass through beneficiary designations, not through your will. Beneficiary designations are the most common way that life insurance policies, annuities, retirement accounts (IRAs, 401(k) plans, Roth IRAs) pass to your heirs. You should periodically review your various beneficiary designations to ensure everything is current.
- Secure health care documents. This year, more than any other in modern times, has reinforced the importance of having advanced directives, such as a health care power of attorney and a living will. If you become ill, these documents allow your agent to make and communicate medical decisions on your behalf.
- Review guardian selections for minor children. As your children age, you may want to change who you have selected to serve as guardian. You should review and revisit that life changes have not changed who you believe is best suited to care for your children if necessary. If you have not named a guardian who is able and willing to serve as guardian, this could be a decision left to the probate court.
- Review your insurance needs. It is important to ensure that your family is protected. Do you have sufficient life insurance to care for your family if necessary? For auto and home insurance, do you have sufficient coverage in the event of a serious car accident? Or a disaster at home?
- Talk to your agents/guardians/family. You do not need to share the specifics about your estate plan. You do not need to share your bank and financial statements. But it is a good idea to have a conversation in general terms about your plans and why you have planned the way that you have, especially as your children age and mature.
- Get documents for unmarried children over age 18. Your unmarried children over age 18, especially college students, should have, at a minimum, health care documents such as a health care power of attorney and a living will. It is also wise to draft a simple will for your children over age 18.
- Call or email McCarthy Law Office. The end of the year and getting ready for the holidays is stressful. We can help make the estate planning process as painless as possible and scratch this very important task off of your to-do list.
Who needs a will? In short, anyone with either property or kids. I have talked to many people who have the best of intentions of finally drafting a will. But it is very easy to put off drafting a will until tomorrow. Tomorrow becomes next week, which becomes next month, which becomes next year. A proper estate plan is essential for families, particularly for parents with minor children. A will is not the only document necessary. A short summary of documents necessary for most families is below. Please note that there is no one size fits all document. I encourage you to call me to tailor a complete estate plan to meet your individual needs.
When I meet with parents with minor children, I typically recommend the following documents:
LAST WILL AND TESTAMENT: a will directs the distribution of probate assets upon death. A will also identifies who you want to serve as the executor of the estate. Parents also can identify who they want to serve as guardians of their minor children if something happens to both parents. This is probably the most important reason for parents with young children to execute a will. The probate court will ultimately appoint a guardian for children if both parents pass away, but parents should clearly identify who they want to care for their children in the event a guardian becomes necessary.
REVOCABLE LIVING TRUST: a living trust is a very useful device to manage property. Trusts can be intimidating. But the basics are not complicated. In a trust, the owner (grantor) transfers property to a trustee. The trustee manages the property for someone identified as a beneficiary. Property placed into a revocable trust is generally not subject to the probate process. Parents can also instruct that assets be distributed to their kids at staggered times. Under the Uniform Transfers to Minors Act, in Ohio, children can receive assets once they reach age 21. But in a trust, a parent can pass part of their assets once the children obtain specific ages, such as 1/3 at age 21, 1/3 at age 25, and the remainder at age 30. But trusts are also very flexible and can be drafted to suit your needs and wishes.
LIVING WILL AND HEALTH CARE POWER OF ATTORNEY: a living will allows the signer to state their intentions regarding withholding or withdrawal of life-sustaining medical treatment, including CPR, when they are no longer competent to make informed medical decisions. A living will becomes the way a person communicates their wishes when the patient is in a terminal condition and can no longer make informed decisions.
The health care power of attorney designates an attorney in fact to make health care decisions when the patient is unable to communicate his or her wishes. The attorney in fact generally has the authority to give informed consent, refuse to give informed consent, and to withdraw informed consent for any medical treatment.
DURABLE POWER OF ATTORNEY: this document is intended to cover your financial matters in the event you cannot handle them yourself. A durable power of attorney helps the management of a person’s affairs during periods of incompetence without the necessity of seeking an order from the Probate Court.
Contact McCarthy Law Office for a free initial consultation about your estate planning needs. Whether you have an existing estate plan that you have not looked at in years or if you have never created a Will of any sort, I will review the proper documents and make the process as painless as possible.
Family Estate Planning in Cincinnati, Ohio
According to this article on cincinnati.com, the total number of car crashes in Ohio is down about 25% in 2020. This is largely due to reduced driving during the pandemic. https://www.cincinnati.com/story/news/2020/07/26/coronavirus-ohio-despite-less-traffic-fatal-crashes-higher-than-2019/5427913002/ However, the number of deaths caused by car crashes is actually up. The expected reason: increased speed. Please slow down.
Even if you are hit by an uninsured driver, you may have coverage through your own car insurance policy. Please contact me if you or a loved one is in a car accident. McCarthy Law Office can help you recover for your injuries and damages.
To better serve our clients, McCarthy Law Office is pleased to announce a new office located at 7595 Bridgetown Road, Suite 200. To those familiar with the area, this is the intersection of Bridgetown Road and Shady Lane. This provides a convenient location for client meetings with ample parking. We will maintain our current office downtown as well.
Further, please visit our new and improved website at danmccarthylaw.com. The new site provides greater detail and explanation of our practice areas, which include:
- Personal injury, including car, motorcycle, and trucking accidents.
- Estate planning, drafting of wills, trusts, powers of attorney, living wills, and health care powers of attorney.
- Real estate and civil litigation.
We welcome referrals and appreciate your confidence. Please call 513-815-7006 or email firstname.lastname@example.org to schedule a meeting.
Ohio extended its Stay at Home Order until at least May 1st. The global pandemic caused by Covid-19, also known as the Coronavirus, has heightened many clients’ interest in completing their wills and estate plans. I have received many questions from clients about the execution of estate planning documents while complying with the Stay at Home Order and social distancing requirements.
QUESTION: ARE YOU STILL TAKING ON NEW CLIENTS?
ANSWER: Yes. I am happy to accept new clients or work with existing clients who are interested in setting up or revising their estate plan. I am currently available to meet with clients virtually from the safety and convenience of their own home, while also complying with the orders from the State of Ohio, the City of Cincinnati, and Hamilton County.
QUESTION: WHAT IS REQUIRED TO EXECUTE A WILL IN OHIO?
ANSWER: Many states are working on electronic or remote signing laws. But in Ohio, the law today requires, “The will shall be signed at the end by testator…. The will shall be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe…. For purposes of this section, ‘conscious presence’ means within the range of any of the testator’s senses, excluding the sense of sight or sound that is senses by telephonic, electronic, or other distant communication.” R.C. 2197.03
QUESTION: WHAT IS YOUR PROCESS FOR DRAFTING AND WITNESSING WILLS DURING COVID-19
ANSWER: There are several steps in estate planning process.:
Initial meeting. For the first meeting, we can talk over the phone or use FaceTime or Zoom to host a video conference.
Information gathering. I use a detailed Estate Planning Questionnaire to help gather the necessary and relevant information. I will email or mail you my questionnaire, which can be completed as a fillable-PDF or you can handwrite the information. You can either email or mail the completed questionnaire back to me.
Document drafting. I will then take your information and complete a draft of the documents. I can securely email you the draft documents for your review.
Will signing. I will ensure that appropriate social distancing of at least 6 feet is used at all times. There are several options for the actual signing. For example, the clients may be on the other side of a glass door or window, in the safety and comfort of their own home. If a glass separation is not possible, we can meet on a driveway or front porch, place the documents in a central location, and essentially take turns signing. The client signs while the witnesses are a safe distance apart, then the clients steps back and the witnesses each safely sign.
QUESTION: WHAT OTHER DOCUMENTS ARE IMPORTANT?
ANSWER: A full estate plan is more than a simple will. Depending on your circumstances, it could also include a Revocable Living Trust. I recommend that everyone, no matter your family situation, should have the following in place:
Healthcare Power of Attorney: This allows you to select an agent to make and communicate healthcare decisions if you are not able to do so yourself.
Living Will: This works hand-in-hand with the Healthcare Power of Attorney, but largely involves end of life decisions. It allows you to instruct your agent about your specific desires and preferences.
Durable Financial Power of Attorney: This allows you to appoint an agent to help with your financial affairs, including paying your bills, managing your money, and talking to your banks and financial institutions.
QUESTION: HOW BEST TO CONTACT ME?
ANSWER: Like millions of other Americans, I am largely working remotely now. But I am available by phone or text at 513-815-7006, or by email at email@example.com. Please contact me to help with your planning needs.