By Timothy Barrett, Argent Trust Company
Every estate planning conversation eventually focuses on the children, whether they are still minors or are grown, established and independent. My approach is to first uncover the client’s attitude toward their children and their opinion of their children’s capabilities and limitations. Parental expectations and their evaluation of their child’s potential to meet those expectations often determine whether they decide to limit access to funds and how long those limitations should last.
When single parents are planning for a minor child, the stakes seem even higher. There are obvious differences for a voluntary single parent and those who entered parenthood in a relationship that subsequently ended, either by break up, divorce, or death.
I am most impressed by single parent clients who have built a healthy, supportive community for their children that fosters fruitful committed relationships. These communities share some characteristics, even though there are always strengths and weaknesses.
The main characteristics I admire include:
- a commitment to spending extensive time with the children and participating or attending their activities
- an established supportive network of one or more key persons also committed to the welfare of the children
- open and respectful communication with the children, and
- an expectation that the children respect and demand respect from the educators and influencers in their lives
Once I understand the client’s perspective on their children, I look to see what support network there is and which of those persons may be suitable to serve in some capacity if needed. Many times, a child’s other parent maintains and enjoys a legal right to full custody or joint custody and scheduled visitation. How the client’s relationship with that ex deteriorated and finally ended is typically a major factor affecting planning decisions.
Most of the time, my client feels that the child’s other parent is the best choice in the event of incapacity or death. Many other clients fear such a calamity mostly because the last person they want parenting the child alone is the other parent. These clients need special terms in their estate plan, and they need a strong supportive network who will advocate for that child.
What to include in an estate plan
The estate plan should include a Trust and a Trustee that will accept funds from the deceased parent’s estate, any retirement plan, IRA and life insurance settlement, and from any claim, judgment or settlement that may be brought relative to the cause of the parent’s death. It is imperative that this Trust be in place so that any court that may be involved has an established basis to determine the deceased parent’s wishes and expectations for the children. The Trust tells the court who the deceased parent intends to carry out his or her wishes and who should continue to be an advocate and influence in the child’s life.
The Trust may name the intended guardian, including alternates, for the child, in case the surviving parent cannot serve or is denied custody. The Trust should provide detailed instructions for how the funds are used, how much discretion the child may be given and at what ages, and who should play a role in the child’s life. The Trust should authorize a suitable person to have visitation rights, including a right to keep the child for extended visits or on vacation, to advise or consent on major decisions, including schools, doctors, sports and activities, and to determine appropriate milestones for activities, such as dating, driving and traveling alone.
An example for how to use Trust terms
The Trust is the final legal method for a parent to give notice and instructions in his or her place. Some of the terms may not be enforceable, but they illustrate the parent’s desires. Here is an example of just a portion of the terms needed in a Trust. This provision is for a parent with little desire to limit a teenager’s choices in any way:
It is my utmost desire that the Trustee generously apply Trust funds so that Child may engage in reasonably safe, legal and age-appropriate sports and activities as he may choose while encouraging the importance of his education. I direct the Trustee to expend Trust funds to enable Child to attend any accredited university, college, or other trade or educational institution, including advanced and independent studies, anywhere in the world, upon such reasonable living arrangements as Child desires, utilizing available financial assistance, and pursue Child’s desired educational or career goals, even if such goals are unlikely to provide a substantial living.
Here is an example where the parent has a strong desire to influence a teenager’s choices and a willingness to limit Trust funds to enforce that desire:
It is my utmost desire that the Trustee apply or withhold Trust funds, in its sole discretion, so that Child engages only in reasonably safe, legal and age-appropriate sports and activities without hindering Child’s education. I direct the Trustee to expend Trust funds, and apply any selected financial incentives or disincentives necessary, to ensure that Child attends an appropriate domestic accredited university or college, including advanced and independent studies as Child may desire, upon suitable living arrangements, utilizing available financial assistance, and diligently pursues educational or career goals likely to provide a substantial living.
There are innumerable ways to draft a Trust and too many choices available to cover here, but a single parent should have a ready answer for these basic questions when he or she meets with an estate planning attorney to draft that Trust.
Who are the persons that provide daily, weekly or monthly after school care, sitting, meal preparation, transportation or shopping for your child? Who could take your child in and raise him or her? Who would you want to have visitation rights or help with healthcare or school decisions?
How much money would be in your Trust at death? Who would be the Trustee? What would be the primary purpose for your Trust? Healthcare? Education? Support?
How much social security or other monthly income would be paid for your child? Who would be the payee?
When you embark on this kind of planning, nothing you can think of will seem adequate. You are irreplaceable. There is no equivalent to you. So, get past that thought and draw up the second-best scenario. Then call an estate planning attorney and draft a Trust that will support that outcome. If you don’t put it all down in writing, the persons you will need to speak for you won’t know what to say.