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If you're a single parent with sole custody of your children, your estate plan wouldn't differ too much from that of two-parent families. The fundamentals of estate planning will still apply. But, if you are your child’s only legal guardian as their single parent, it’s imperative that you do not procrastinate as you don’t have a spouse/partner who, by operation of law, automatically assumes their care and upbringing if you’re no longer around.
The following are key issues we emphasize to our single-parent clients when they are planning for their wills and trusts:
Children - Guardianship Is the First Thing You Should Attend To
If you have a close friend or relative you trust, start talking to them about legal guardianship of your children. If you share joint legal custody with your children’s other parent, you need to get his/her agreement on guardianship arrangements and create a joint guardianship document that reflects your aligned decisions.
Pets - Don’t Forget Them
It may sound strange, but if you and your children have a family pet, make sure your estate planning provides for the pet to remain with the children, as well as provide for that pet's upkeep and care. Losing a parent can be a terribly painful experience, but one which children (who are often amazingly resilient) can manage better if they have their beloved pets with them. You can set up a pet trust to ensure that this is possible for your children, and this should be part of your estate planning process.
Money for Minors - Talk to Your Financial Advisers
Make a list of all your assets, and keep it updated. If you have life insurance, that's a major asset for your children, but bear in mind the death benefit is subject to estate tax (unless it's in an ILIT—an irrevocable life insurance trust). It's very easy to ensure that your kids get your life insurance. Simply call your insurance carrier and make a beneficiary designation in their names.
You can also make beneficiary designations for your retirement accounts (e.g. the 401k you have with your employer or the IRA that is your own retirement account). You want to make sure, above all, that your kids have liquidity (cash) to live on while your will goes through probate or when your living trust takes effect.
You’ll need to set up a UTMA (Uniform Transfers to Minors Act) account as minor children aren’t legally permitted to manage their own money. A UTMA account requires a “custodian,” so pick an adult you trust and who has the financial acumen to manage the account prudently until your minor children are of age. In New York State, minor children who are beneficiaries under an UTMA account can only access the funds directly when they turn 21 years old. Your financial adviser can provide the proper UTMA-related forms to you in regards to your life insurance and retirement accounts.
If you fail to designate a UTMA custodian, the courts will have to appoint a financial/property guardian for your children’s inheritance of these benefits, a time-consuming and costly process that will delay an adult accessing much-needed money quickly to pay for your children’s needs.
The other key legal structure to consider is an asset trust. Remember that your minor children cannot legally handle or manage the financial assets you leave them. You’ll need to appoint someone to do so until they are of the age of majority. You can set up an asset trust and appoint a trustee. A revocable living trust would be such a trust. But, a trust document does not address questions of Legal guardianship, which is best dealt with in a will. If you have a living trust, you have to inform your financial adviser about it, especially if your directives under it differ from what’s in the UMTA documents pertaining to your life insurance and retirement account. For example, a living trust can dictate that your minor children do not have access to these monies until they are 25 years old (as opposed to 21 years old under UTMA).
Note: Beneficiary payouts under life insurance and retirement accounts involve a much more straightforward process without probate. It’s important, however, that you talk to your CPA or tax adviser about taxes on this type of inheritance as there are taxes levied in certain situations.
Real Estate - Talk to Your Tax Adviser, Too
Some parents think that adding their children's names to the title deed of the family home is a no-brainer. While the intent is good, the reality is that there are tax implications (e.g. capital gain taxes, gift taxes) when you do so. Please consult your tax adviser or CPA before you make any such move. A New York City estate planning attorney can also give you well-informed advice in this area.
Be careful also about holding/owning property jointly with another person, e.g. an ex-spouse or family member. Joint tenancies are the legal term used to describe property held by two or more persons in equal measure with rights of survivorship. This means that when one owner (tenant) dies, the remaining owners receive the decedent’s share of the real estate. This right of survivorship operates by law, and overrides any will or living trust.
Health - It’s about You, but Also about Them
Should you find yourself in a medical situation where health decisions have to be made for you, you can ensure that your wishes are respected and carried through by setting them forth in a living will. Those who care for you (including your children) would not have to experience the added stress that comes with making such decisions for you or face legal hurdles to do so.
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