Does custody always immediately go to the nearest immediate family member? - Mothering Forums

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#1 of 41 Old 01-06-2010, 01:08 PM - Thread Starter
 
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If my husband and I both die, will the authorities release our children into the custody of the first family member to arrive? And how distantly related can they be to have this happen? I have a cousin who's nearer to us than any of our parents or siblings.

Can you have a letter in your wallet naming someone to come and get them who isn't related to you? If there were an accident and my husband was out of town (or if we were both in the accident), I'd prefer to have my kids collected by a friend than sent with a stranger. Does the letter need to be witnessed or anything?
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#2 of 41 Old 01-06-2010, 01:28 PM
 
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I would have a will made up and notarized, at least. Then I would put a copy in a fire box in your house and give another copy to the person you want to have custody.

Mama K: Child of God, wife to S, mama to 3 little beauties and 1 handsome little guy!

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#3 of 41 Old 01-06-2010, 01:39 PM
 
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You should name a guardian in your will and also establish a trust for your child(ren), which you can do using a simple life insurance policy.
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#4 of 41 Old 01-06-2010, 01:40 PM
 
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You need a will with guardianship named, nothing at all is automatic and if you don't make your wishes known it could be a mess.

As for who is called to come get the children immediately during an emergency, absolutely, you can have that information in your wallet or purse. I would think that most workers would be looking for an address book, so if you have a little address book in your wallet, you can put that information on the first page, for example.

ETA: I don't know anything about the likelihood of that information being found (that is, I don't know if it's protocol for a paramedic or the police or a nurse at the hospital to look in your purse) but it sure can't hurt anything.

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#5 of 41 Old 01-06-2010, 02:16 PM
 
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One piece of advice I read somewhere is to have someone in your cell phone directory listed as ICE (in case of emergency). This is the person you want the paramedics to call if you're found unresponsive. Presumably, that person can give further, more detailed instructions.

Sarah, mama to Miriam 9/26/2006 and Isaac 2/12/2010
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#6 of 41 Old 01-06-2010, 02:20 PM
 
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You should name a guardian in your will and also establish a trust for your child(ren), which you can do using a simple life insurance policy.
Yes to this. I'm always shocked at parents who seem to think a will is a luxury vs. a necessity. Your kids would want you to love and protect them... even if your gone. A will does that.
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#7 of 41 Old 01-06-2010, 02:28 PM
 
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Originally Posted by sarahr View Post
One piece of advice I read somewhere is to have someone in your cell phone directory listed as ICE (in case of emergency). This is the person you want the paramedics to call if you're found unresponsive. Presumably, that person can give further, more detailed instructions.
Good tip! I heard they also will call the "Home" number.
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#8 of 41 Old 01-06-2010, 02:44 PM
 
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I have made some tags that are attached to the car seats. They are laminated and stuck on with cable ties.

They list:
Child's Full Name
DOB
Blood Type
Allergies
3 different next of kin (mother, brother, inlaws, my parents in CA)
Favorite foods
Favorite things

But you need a will like the others said, with guardians, a built in trust, and trustees named if your guardians can't handle money.

Liz

Wife, and mother to a small fairy, a demolition expert, a special new someone this fall and a small dachshund.
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#9 of 41 Old 01-06-2010, 02:54 PM
 
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You need a will with guardianship named, nothing at all is automatic and if you don't make your wishes known it could be a mess.
Yep, HAVE to have a will with guardianship! My parents died when we were kids, and we went to the LAST person they'd have wanted us to go to. Four years later, I got a lawyer and was in court for all of my freshman year of college...

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have someone in your cell phone directory listed as ICE (in case of emergency). This is the person you want the paramedics to call if you're found unresponsive. Presumably, that person can give further, more detailed instructions.
Yes, this!! You can have more than one ICE. Like ICE-John (husband), ICE-Mary (sister), ICE-Julia (neighbor).

The info tags on car seats are good too. Our hospital used to give out kits for this. Think they had a whale or something on them... There was an acronym but I forget it now - oh, I think it was We're Having A Little Emergency. Oh, I'm proud of remembering that!
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#10 of 41 Old 01-06-2010, 03:23 PM
 
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I also have a number noted on the page of numbers I leave for a sitter that says -- call this person first if something happens and lists my best friends, who also happen to be the designated guardians for the kids.
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#11 of 41 Old 01-06-2010, 03:32 PM
 
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I've also heard that if the person who gets custody does not live nearby, you should designate a short-term person who should take the kids until the ultimate custodian can come get them.

Mom to Kira March 2009
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#12 of 41 Old 01-06-2010, 04:30 PM
 
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This is a good question. I am a choicemom (ie, conceived with anonymous donor sperm) In addition, my extended family do not live in this country (US). I assume that if something were to happen to me, that my mother would be called, and custody given to her (though she does not live here) otherwise kids would end up in foster care. This is hardly in their interests. Dont courts look to whats in childs interests?

I have notarized document pinned to my wall by the door, which states that kids would go to grandma first (with number and address listed) then to my siblings (5 of them) in order of preference.

I was told this would not stand up in court ( i dont have a will, as i have so few possessions) I dont understand how a notarized document would be considered invalid, especially if it states that kids go to next of kin.

if my kids ended up in foster care, would my mother then have a case for suing the authority that messed with my children, and contradicted my will?

I assume they would find this information as it is on my door. I have numbers in my phone who have my parents information but are not people who could take care of my children.

Interested to hear more...
Maya
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#13 of 41 Old 01-06-2010, 04:32 PM
 
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ps have not read entire thread, and look forward to doing so...
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#14 of 41 Old 01-06-2010, 04:36 PM
 
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pps. does anyone know what constitutes a will specifically? Why wouldnt a notarized document stating my will, constitute a 'will'? Is it really necessary to pay a lawyer for this? Not all of us have this kind of disposable income.

Perhapa i was misinformed, and notarized document would stand up in court...

To pp who went to court to sort this out in college year, hope you got lots of money from the people responsible for messing with your life
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#15 of 41 Old 01-06-2010, 06:06 PM
 
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You can do a will yourself, the only problem might be if you word things incorrectly or if some family member steps up and objects.

Also, I believe it needs to be signed by two witnesses. I'm not sure the notarization is significant. Yours would probably be followed UNLESS someone objected, that's where the problem comes in.

If you have zero money to spend on it, I would go to the public library and look up books for legal forms that are valid for your state. You can probably find a generic will stating guardianship, etc that you can just fill in with the proper info.

If you have a bit of money to spend ($35-40), I'd probably get something like Willmaker software (works for all states except Louisiana):

http://search.barnesandnoble.com/boo..._-Primary&IF=N

That software will only work for 2010, but the will it makes will be valid indefinitely. You just can't use it to generate any new wills after 2010 is over. It also give you all the instructions for getting it signed and validated, etc.

For what it's worth, DH and I had our wills done by a lawyer and it only cost about $300 for both of us (two separate wills which are almost identical, but mine leaves my stuff to DH and vice versa). But, I realize we live in a LCOL area and it can cost a lot more for some people.
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#16 of 41 Old 01-06-2010, 06:10 PM
 
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The closest/fastest person to get there that is in your contact list would get initial posession of the kids most likely.

But permanent custody for the long term is decided by the courts. If there are people that you would NOT be okay with getting the kids then you MUST have a will. It can be very simple and basic, but you MUST have a notarized will to protect your children.

Don't assume what the courts will do. I think the only real assumption that you might be able to make sort of is that the richest/person most likely to fight in court will prevail. But even that is not iron clad.

If you are worrying at all, then you must get a will. Don't leave something like this to some stranger who doesn't know you or your family or your history or what you want to make a blind decision.
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#17 of 41 Old 01-06-2010, 07:31 PM
 
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Originally Posted by contactmaya View Post
This is a good question. I am a choicemom (ie, conceived with anonymous donor sperm) In addition, my extended family do not live in this country (US). I assume that if something were to happen to me, that my mother would be called, and custody given to her (though she does not live here) ...
I don't know if you can assume that, especially since she's not in your country. I would not consider this resolved at all.

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otherwise kids would end up in foster care. This is hardly in their interests. Dont courts look to whats in childs interests?
Of course but the court is not their mother. They can only do the best they can, and without your legal document it complicates things. It's up to you to look to the child's interests, ultimately.

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I have notarized document pinned to my wall by the door, which states that kids would go to grandma first (with number and address listed) then to my siblings (5 of them) in order of preference.

I was told this would not stand up in court ( i dont have a will, as i have so few possessions) I dont understand how a notarized document would be considered invalid, especially if it states that kids go to next of kin.
I don't know that the document would or would not stand up in court. But why leave it to chance?

You don't need a certain number of possession to have a will. If you have children, you need to state guardianship, and also leave any assets (no matter how few) to them or their guardians.

"Next of kin" is not clearcut, epecially since the next of kin is in anoter country. Hence, it really could be a mess without legal guardianship straightened out.

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if my kids ended up in foster care, would my mother then have a case for suing the authority that messed with my children, and contradicted my will?
I'm not following, you said you have no will.

Homeschooling mama to 6 year old DD.

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#18 of 41 Old 01-06-2010, 07:36 PM
 
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You definitely want a living revocable trust one that establishes who you want to be the guardian (and talk to that person/persons in advance and get their blessing) and that tranfsers all of your assets (401Ks, home, insurance policies, etc) to the trust. You child or children are the beneficiaries of the trust. This is the simplest way to go as you avoid probate which is costly and can take years. You also need to establish a trustee (this is YOU while you are alive) and someone else if you both die. I have my father as the trustee should I die. You definitely need a hefty life insurance policy (particularly on the person who is the main income generator).

This sounds complicated but it's really not. A lawyer can set it all up for you for a few hundred dollars. It's VERY important to do this. Good luck!

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#19 of 41 Old 01-06-2010, 07:45 PM
 
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The legality of a will is determined by state law, so the fine points (like number of signatures/witnesses, need for notarization, etc.) vary by state.

There are various legitimate software programs you can buy to do a will and they generally provide different state laws for you. Is this as good as a lawyer? No. But it's something, and the probate court will attempt to follow your wishes if they are made clear in these documents. If you have complex family and/or custody issues, especially if you are divorced, I would recommend seeing an attorney about it.
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#20 of 41 Old 01-06-2010, 07:52 PM
 
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As for who is called to come get the children immediately during an emergency, absolutely, you can have that information in your wallet or purse.
I think this is what the OP is asking, rather than someone named for long-term care. If you were both in an accident, then the children would have to be with someone to begin, right? I'm assuming they'd stay there for a bit, at least until things get sorted out. After that, I've always read to have emergency contacts in your car and purse/wallet. Many of our partnered but not married friends do that so their partners will be notified if something happens.

It's us: DH , DS ; DD ; and me . Also there's the . And the 3 . I . Oh, and .
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#21 of 41 Old 01-06-2010, 09:17 PM
 
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Nolo puts out will making books for different states; I checked one out from the library and used the template there. Ohio requires three signatures but no notary, so I got some of our friends to come over and sign.

Wills are definitely not just for possessions; the only point of ours is to see who would take care of the kids, not who would get the meager quantity of money in our bank account.

http://www.nolo.com/legal-encycloped...rusts-estates/
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#22 of 41 Old 01-06-2010, 09:21 PM
 
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As a former ER nurse, here is what we would do. If the kids were with you when they were brought in, we would care for them and call CPS if both parents were incapacitated. Usually we will call on a cell phone, but the best thing to do is to leave info on a card BEHIND or ATTACHED to your driver's license.

Also, most people forget about what happens if the kids are not with them. Do your children's schools and sitters know your wishes, or what to do if you do not show up?

A will and trusts are essential. Our attourney set ours up very quickly ( with special caveats since my DD has special needs. She suggested that we not only list who we wanted to take the children, but who controls the trusts (in our case different people). It also lists the family members we do not want to have custody in any circumstances and why.

This way, if they contest the will, the judge knows we did not overlook them, we purposefully chose not to put our children there. (Wealthy childless relatives, but think children with special needs should not be treated "for the good of human kind")

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#23 of 41 Old 01-07-2010, 05:02 PM - Thread Starter
 
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ANJ-RN, thank you for your response, on this card, if the person on the card attached to my driver's license could come straight away would you/CPS allow them to take the kids home with them?

Everyone else, don't worry, we have good wills drawn up by a lawyer, but it will take a few days for the guardian to arrive. I would prefer the kids be with friends rather than strangers during that time.

Contactmaya, the guardian does not have to be the person the child lives with. We have two siblings as guardians, but most likely our kids would live with grandparents. But, over the next 18 years things change, and this is the solution that's most flexible.
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#24 of 41 Old 01-07-2010, 05:42 PM
 
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I was told this would not stand up in court ( i dont have a will, as i have so few possessions) I
Wills aren't just about posessions. Having kids is more than enough reason to have an official will.

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#25 of 41 Old 01-08-2010, 03:19 PM
 
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Didn't read through the responses, but I am curious. If you DONT have a will with gaurdianship, what happens to the kids? And if you make up a will, do you HAVE to make up one with your husband, or can you make up one without him and have the gaurdianship on there without him knowing? The reason I ask is because I know trying to decide who gets gaurdianship will be nothing but an argument.
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#26 of 41 Old 01-08-2010, 04:31 PM
 
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Didn't read through the responses, but I am curious. If you DONT have a will with gaurdianship, what happens to the kids? And if you make up a will, do you HAVE to make up one with your husband, or can you make up one without him and have the gaurdianship on there without him knowing? The reason I ask is because I know trying to decide who gets gaurdianship will be nothing but an argument.
First, disclaimer. I'm not a lawyer or an expert. And I'm sure this all varies by state. Its my understanding that without a clear legal document indicating your wishes, the court gets to decide. The kids can end up in foster care during that process. If people fight it, that can take a bunch of time. That's why its better to have a will in place if you die.

I would guess that if you died and your DH did not, he would automatically get custody and I doubt you could change that, even with a will. Unless of course he doesn't want custody and lets the kids go to whomever you specified without a fight. I can't see that for most fathers though.

If both of you die and you have a will and he doesn't, that would probably stand unless someone on his side of the family fought it and then I imagine it would end up in court.

If you both die and you have separate, different wills then I would guess the court would still end up deciding.

Best thing would be for you both to have wills that had the same provisions, even though getting there would be difficult. Maybe it would be worth the cost for a professional to mediate the discussion? Some sort of counselor/neutral party maybe?
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#27 of 41 Old 01-08-2010, 04:45 PM
 
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First, disclaimer. I'm not a lawyer or an expert. And I'm sure this all varies by state. Its my understanding that without a clear legal document indicating your wishes, the court gets to decide. The kids can end up in foster care during that process. If people fight it, that can take a bunch of time. That's why its better to have a will in place if you die.

I would guess that if you died and your DH did not, he would automatically get custody and I doubt you could change that, even with a will. Unless of course he doesn't want custody and lets the kids go to whomever you specified without a fight. I can't see that for most fathers though.

This isn't the issue at all, but thank you.

If both of you die and you have a will and he doesn't, that would probably stand unless someone on his side of the family fought it and then I imagine it would end up in court.

If you both die and you have separate, different wills then I would guess the court would still end up deciding.

Best thing would be for you both to have wills that had the same provisions, even though getting there would be difficult. Maybe it would be worth the cost for a professional to mediate the discussion? Some sort of counselor/neutral party maybe?
I guess we really should just sit down and discuss this. I have an email in to a friend whose a paralegal, so I am waiting to hear back from her on costs. I hate to think about this sort of thing, and really our families are not the toxc, fighting type. So I sincerely hope that if anything were to happen before we get the will wrote up, they would do whatever it takes to keep the kids happy, safe, and well cared for. I know my mother would let the inlaws have them WAY before letting them sit in foster care because everyone was fighting over it. And I am pretty sure my MIL would do the same thing.
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#28 of 41 Old 01-08-2010, 04:57 PM
 
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... really our families are not the toxc, fighting type. So I sincerely hope that if anything were to happen before we get the will wrote up, they would do whatever it takes to keep the kids happy, safe, and well cared for. I know my mother would let the inlaws have them WAY before letting them sit in foster care because everyone was fighting over it. And I am pretty sure my MIL would do the same thing.
Lucky you. My parents have already stated that they disagree with our decision and they intend to take it to court and fight it, assuming they are still alive and kicking. So both DH and I have made sure our wills are good, accessible, that the designated guardians know where everything they need is. I have also enclosed a letter to the judge, knowing that it will have no legal status but in hopes that she/he might take it into account should the need arise.

And none of us likes to think of these things and the discussion is uncomfortable, even with you mostly agree with your DH (as we did). It sucks, to be honest. But its necessary and part of parenting, I think. Sort of like getting up at 2 AM because your child needs you.
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#29 of 41 Old 01-08-2010, 05:02 PM
 
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And none of us likes to think of these things and the discussion is uncomfortable, even with you mostly agree with your DH (as we did). It sucks, to be honest. But its necessary and part of parenting, I think. Sort of like getting up at 2 AM because your child needs you.
Yea, I forgot to add that I know its necessary and that avoiding such, or thinking you can cheat death to avoid such things is a totally irresponsible thing to do.
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#30 of 41 Old 01-08-2010, 05:44 PM
 
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Hi, I just wanted to chime in as an estate planning attorney for families. I've written a lot on these issues, but everything is posted on my website, so I can't link it. My own mother died when I was 2 1/2, and without a plan, which made me really look at all of the practical issues that come along with estate planning, and not just the legal issues.

When my mother died, no one had clear legal authority to take custody of me, so I was taken into foster custody until the guardian situation was sorted out. She hadn't named a guardian, so guardianship was given to my uncle, who I know she wouldn't have picked. My uncle ultimately gave me up for adoption, and refused to let any of the family members adopt me. They had every legal right, but practically speaking, no one had the money to fly to another state and hire an attorney to make it happen. (Everything turned out fine for me and I had a great childhood, but I knew when I became a parent that I wanted all of these issues to be decided by ME, not by a court.) My uncle was also made trustee of the settlement we got from my mom's car accident, and made poor investments (like buying a $20,000 stamp collection in 1980 that sold for $700 in 2006). My mother also didn't leave behind anything to tell me who she was. This was by far the hardest thing for me to deal with.

Anyway, to make a long story short, all of these issues were on my mind as a young mother and young attorney when I decided to do my estate planning. Everyone knows that you "need to do a will," but I had questions like a lot of the ones here and I set out to answer them myself. Some of the things I discovered were:

-Naming guardians in a will is a good idea, but it doesn't take care of the possibility of my kids being placed into foster care in the interim between my death and a court approving the guardianship.

-I needed a plan for the short term. Someone needed to be legally designated to pick up my kids immediately if something happened to me.

-A will has no effect unless I am dead, so it's ineffective if I am incapacitated in some way. I needed to plan for incapacity as well.

-My family would be left in a terrible position if all I left was a set of documents with no one to turn to for help with them.

-I needed to legally exclude certain people from being considered for guardianship if I wanted to make sure they didn't cause trouble for the people I actually designated.

-I needed a plan for my finances. Someone trustworthy needed to be in charge if something happened to me, and I needed to make sure I had enough in assets and life insurance to fulfill my goals for them. I also needed to set the terms for how the money should be spent and when my kids would be old enough to receive an inheritance.

-Having a will pretty much ensures that my estate has to go through probate. I needed a trust so that I could avoid the expense, time delay, and privacy issues related with probate.

-I needed to also leave behind something that showed my kids who I am, how I feel about them, what my hopes and dreams for them were.

In my practice today, most of my clients have young children, and we advise them to have what we call a Kids Protection Plan. This includes nominations of both temporary and permanent guardians, a confidential exclusion (for people you don't want considered for guardianship), medical power of attorney (so someone can make medical decisions for your child, say, if you were all in a car accident), instructions to guardians (on things like values - parenting, educational, financial, etc. - that you want passed on, how you want your kids raised), ID cards for the parents' wallets identifying them as parents of minor children and listing the short-term guardians and the numbers to reach them at, instructions to caregivers and schools explaining that if mom and dad don't show up to call the short-term guardian, and letters to every short and long-term guardian explaining their role and what the plan will be.

If parents don't have assets that are subject to probate, they should at least have a Will (most states do a separate will for each parent), Healthcare Directive/Power of Attorney and/or Living Will (designates representative and outlines healthcare wishes - beware, the requirements are very state-specific), and a Durable Power of Attorney (an agent can deal with your finances and assets if you are unable).

If parents do have assets, even if it's just a house, they should consider using a revocable living trust plan in order to avoid probate. This is not something you should do alone, and I'd be very wary of any attorney who charged less than a few thousand dollars to set up one.

It is also a really good idea to think about who your family is going to turn to after you're gone. It is a much better idea to form a relationship with a lawyer now, than to expect your family to find one during a time of distress and vulnerability. Find someone you trust and like. I have a great resource for locating an estate planning lawyer in most areas, but since I'm listed on the site, I won't link it here. I guess, PM if you need that link.

Last, in my own practice, all clients get to record a "Priceless Conversation." Dozens of attorneys across the US are offering this, and if you can find an attorney who does, you won't be sorry! It's basically a voice-recorded interview where people have the opportunity to say what they'd want to say to their loved ones if something happened to them. It's a wonderful gift to leave behind, one that I wish I had from my mother. You can even make one yourself, but I've found that my clients are more likely to do it if we're setting up a date and time and recording it for them. Parents are busy.

Well, sorry if that was all rambly! I wish I could have just linked to one of my articles, but themz the rulez!
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