You may not know it, but you have an estate plan. Even if you have never taken the time to visit an estate planning attorney and have a trust or a will drafted, the state of California makes certain presumptions about what you would want as a parent in the absence of a specific written plan that you have signed with the appropriate formalities.
The first presumption is that you would want your children to receive all of the money from your estate when they turn 18
Remember how good you were with money when you graduated from high school? The state of California presumes that at the age of majority (18) your child can adequately manage any inheritance they might receive through a probate administration, or as the proceeds from a life insurance policy, etc. This could equate to hundreds of thousands of dollars in a typical estate. Taking the time to set up a trust gives you the control to decide how and when your child receives their inheritance. You can set age milestones (i.e., 50% of the estate distributed at age 25 and the remaining 50% distributed at age 30), or performance milestones (i.e., achieving certain grades in college). Your choices are unlimited; your estate planning attorney can tell you what some typical options are. No one knows your children as well as you do. As they grow and their personalities become more distinct you have the ability to reshape your estate plan to grow with them.
The second presumption is that you want your estate divided equally among your children
While your children are still under 18, generally you are inclined to treat them all equally when you consider how you want your estate distributed upon your death. However, we all realize that as children grow up they don’t all turn out as self-sufficient as we might have hoped. If you have a child who is now an adult and has a substance abuse problem, a spending problem, possibly even an abusive spouse, would you feel comfortable handing them hundreds of thousands of dollars? You may have a special needs child who will require a particular type of trust to protect their right to continue to receive governmental benefits, and you may feel that they require a different ratio of your estate. If you are unfortunate enough to have severed a relationship with a child (either through your actions, or through your child’s), while retaining solid supportive relationships with your other child(ren), would you want all of these individuals to receive the same sums of money upon your passing? You may, but then again you may not. The state of California presumes that you would want all of your children to receive the same amounts when you die.
The third presumption is that those family members with the closest relation to you would make the best guardian(s) for your children
Every family has at least one member who has difficulty with money, or difficulty holding a job, or difficulty maintaining relationships. Just because you share the same parents, you and your siblings (or even you and your parents) do not necessarily subscribe to the same philosophies on child rearing, religion, spending, etc. You possibly are more aligned with one particular sibling in your personal views on parenting, or perhaps you don’t see eye to eye with any of your family on this point. Your entire family may live on the other coast, also. However, you may be fortunate enough to have a close friend that shares your views on parenting that lives right around the corner from you. The courts will give preference to those with familial ties. Without formally nominating an individual in your estate planning documents, a close friend who might be the best guardian for your child(ren) would be required to launch an expensive and protracted campaign in court to try to become guardian of your children.
The fourth presumption is that your children can get along without any money during the administration of a probate estate
Probate is a long process. A typical estate takes a year to complete, and in many instances, much longer if there are any problems or complications. The guardian of your children would have to make particular requests of the court for a family allowance, or for an early (preliminary) distribution of a portion of the estate if they wanted to receive any financial support for your children during this process. If you have a trust in place your child(ren) will receive financial support virtually immediately, according to the terms of your trust.
The fifth presumption is that a former spouse would be a great person to act as guardian of your child’s inheritance
If you have a former spouse, you may be fortunate enough to have maintained at least a civil relationship with that person throughout and after your divorce proceedings. However, if you are like a great majority of people, you may find contact with your former spouse to be quite difficult. Without a trust, the surviving parent (your former spouse) has priority in being appointed as the individual to handle money left to your children.
The sixth presumption is that you would want your new spouse to receive a share of any of your separate property
Under the laws of intestate succession, if you have remarried, and have children from a prior relationship your separate property (everything you have when you remarry) will be split between your new spouse and your children (the ratio depends on the number of children you have). You may even have done an estate plan prior to remarrying that mentions the person you eventually marry, and leaves them some nominal gift. If you don’t take the time to update your plan after remarrying, and acknowledge that you have a new spouse in your will or trust, the state of California presumes that this is an oversight and you really intended to leave your new spouse a portion of your separate property estate (coming right out of your child(ren)’s share).
Your children’s welfare is the central focus during your lifetime. Drafting a will or a trust with a qualified estate planning attorney is an easy and relatively inexpensive process that can ensure that your children are cared for after you are gone.
The contents of this article are not intended to provide legal advice. Seek the counsel of an estate planning attorney for advice on your own individual estate plan.
The Law Offices of Erin E. Dixon is an Estate Planning, Trust, Probate, Divorce and Family Law firm serving Southern California with offices in the Santa Clarita Valley and the South Bay. Before retaining an attorney, see their rating on avvo.com.
Sunday, September 13, 2009
Saturday, September 5, 2009
Divorce is stressful not only for adults, but children too. Children are the unwitting casualties of divorce, and it should be your goal to protect them at all costs while going through your divorce and during the rest of their childhood. That being said, it can be your most challenging task when faced with a (soon-to-be-former) spouse that is angry and/or vindictive. The reactions you may receive from your children) may differ greatly depending on the child and circumstances surrounding the breakup. Fortunately, parents can help their kids during a divorce. Here's how:
Reassure Your Children
Reassure your children that both parents love them (do this early and do it often); tell them directly that the divorce is not their fault and that everything will be okay. In most cases, you should attempt to come up with a game plan (or "parenting plan") so that both parents can be actively involved in your children’s activities. Also, most Courts offer “parenting coordination classes” such as “Parents and Children Together” that can be taken to help you work with the other parent for the betterment of the children; take advantage of these classes even if they are not mandated by the Court, and even if your former spouse does not participate. Discuss any potential plans or agreements with your respective attorneys, and seek their input prior to making a final commitment. Do not sign anything without talking to your lawyer first.
Avoid Involving the Children in the Dispute
Do not involve your children in legal discussions. The financial and legal details of the divorce will only serve to upset and distress your children. Children should not be permitted to overhear your arguments and discussions about legal, financial, or emotional issues relating to the divorce. If your children are older, take care to safeguard any paperwork related to the divorce by storing it out of the way. Children should not be informed about what is going on in court and generally should not be asked to make a decision to choose one parent over the other. Your children should not be encouraged to shuttle messages back and forth between their parents; instead, you should communicate directly, politely, and calmly with the other parent about any parenting issues (even if your spouse is rude or unresponsive with you). Never bring your children to Court without prior Court approval. You will only aggravate the Court and upset your children.
Get Along with Your Former Spouse
Do not insult or talk negatively about your (soon-to-be-former) spouse in front of, to, or around your children. This is harmful and detrimental to your children. In extreme cases, it is sometimes referred to as "Parental Alienation Syndrome (PAS)", and can ultimately be used as grounds to take away custody of your children from you. You should encourage your spouse to be the best parent that he or she can be, even if your spouse was not a particularly good husband or wife. Children need both parents; driving a wedge between your child and the other parent will do grave damage to both or may backfire and cause the child to resent you and defend the other parent. Sometimes the other parent simply withdraws from the relationship altogether; only in the rarest of circumstances is this good for your child. The majority of children charged with crimes in our juvenile justice system do not have the active involvement of both parents. Keep in mind that your child’s parenting style as an adult is based largely on what he or she learns as a child.
Keep the Routine the Same
Try to maintain the status quo during the divorce as much as possible. The children have grown to expect such routines from you, and you will cause unnecessary stress if you decide to change all things that are familiar to them. If the divorce does not require moving them out of their house, changing schools, or moving to another city, it is not a good time to make these or other changes. If your children have friends they like to play with, family members that they want to see, or adults involved in their lives (that you approved of prior to the divorce), do not cut off those relationships simply because they may be "more friendly" with (or related to) your spouse. Your children should be encouraged to contact these people by telephone or email if they cannot visit in person. You must be the bigger person about these matters. Take the high road, rather than the low one that is so often traveled.
Be a Parent to Your Child
Do not dump your emotional baggage on your children. If you are angry with your spouse, have resentment toward your spouse, or are saddened by his or her actions, you should not discuss these extreme emotions with your children. Your child is not your friend, buddy, and certainly not your counselor or therapist. Casting them in this role only puts undue pressure on them. You are the parent and your children expect you to be in control at all times. If you are out of control, you cannot parent the way you should. Your children need you to be engaged most of all during this emotionally difficult time. If you need to discuss your feelings, hire a counselor or speak with a close friend or adult relative. An added benefit of putting your children first during this process is that it keeps you from wallowing in self-pity and helps move you along in the healing process.
Get Agreements with Your Former Spouse Regarding Raising the Child
Parents should discuss, agree, and then mutually enforce appropriate limitations concerning the use of cell phones, computers, video games, television, and similar electronic devices or modes of communication. You should include what ratings are acceptable for television, movies, and video games, as well as appropriate curfews or bedtimes.
Don't Criticize the Other Parent
In your resentment toward the other spouse you may be inclined to seek reassurance from your children that they favor you over the other spouse. Do not criticize the other parent. Do not permit, encourage, or allow your children to criticize the other parent. The other parent's failures in life (financial, psychological, relational, physical or emotional limitations, or legal problems) should not be discussed with the children, unless it is first brought up by the child, and only then after a discussion is had with the other parent about the nature and extent of the disclosures to be made to the children.
Never Introduce New "Significant Others" During a Divorce
Never ever, ever introduce new “significant other” into your children’s lives during or even shortly after the divorce. This will confuse them, upset them, and will make them very angry and resentful. Take this time to concentrate on the children and building your relationship with them, rather than a new love interest.
Create a Space for Your Child
All children should have a place for their belongings in a room separate from their parents, at each parents' location. The children should be allowed to take a reasonable amount of belongings with them to the other parent’s home and they should always be permitted to return with those items that were originally in his or her possession, unless a prior agreement is made with the other parent in advance. The child must be permitted to have photographs, correspondence, and personal items from both parents in their personal space.
No Drugs, Alcohol, or Tobacco
Children should not be exposed to secondary smoke from tobacco. Children should not be present during the use or possession of illegal drugs. Parents must ensure that children are not transported in a motor vehicle by any person under the influence of alcohol or drugs. Your children deserve to be safe and secure.
The Law Offices of Erin E. Dixon is an Estate Planning, Trust, Probate, Divorce and Family Law firm serving Southern California with offices in the Santa Clarita Valley and the South Bay; http://www.erinedixon.com/. Before retaining an attorney, see their rating on http://www.avvo.com/.