Estate planning for young families; the job you don't want to do but must

As the mother of a six-month-old daughter and an estate planning attorney, planning for the possibility you might die, become disabled or incompetent is a topic near to my heart. It’s also one I often get questions about from people who have, or are expecting, children.

There are the bashful confessions that making a will is something they have thought about but haven’t gotten around to; those who believe they are too young and healthy for anything to happen to them; and those who say they can’t afford the expense or the time required. Some think they don’t have enough property to make it worthwhile.

But while you may consider estate planning akin to getting a root canal, the task, once completed, can bring peace of mind.

Let’s start with the basics: why do you need to have an estate plan? To ensure that your partner and minor children are taken care of in the event of your death or disability. Are you really willing to take the chance that Ohio law and perhaps a judge, would distribute your estate and award guardianship of your minor children to the same people you would choose? That is a big gamble.

If you are legally married and do not have a will, under Ohio law your spouse will inherit your entire estate, provided your spouse is the natural or adoptive parent of all of your children. That may be fine with some people, but what if you have children from a previous relationship? Then your estate will be divided according to a formula: your spouse and children will each get a portion. Will that formula adequately distribute your assets to meet the needs of your spouse and children?

If you are not married, then your children would inherit everything and your significant other would get nothing. 

Then there is every parent’s worst nightmare: you and your spouse both die in a tragic accident. Who is going to have custody of your children?  Unlike distributing your assets without a will, there is no standard formula for determining who becomes guardian of your children. A judge, based on his or her opinion of the evidence presented, is responsible for deciding who would make the best guardian.

After losing both parents the last thing any child is going to want is a court hearing – or worse yet, a battle – over who is going to become their guardian. Imagine the scene if there is a fight between family members. Is a family member even the best person to assume custody?

If you have a will, you can designate who you want to have physical custody of your children, as well as a separate person to be in charge of the assets you have left for them. In some cases this may be the same person, however, you can also choose two separate people; sometimes the best caregiver may not be the best financial custodian.

In my opinion, the top reasons to have an estate plan in place when you have young children are to designate a physical guardian for them, and to make sure their financial needs are taken care of.

The unfortunate truth is that people die at all ages. You need a will unless you want to gamble that Ohio law and a probate court judge will carry out your wishes without instruction. Just think about the time you spend bundling them up in winter, buckling them up in the car, worrying about what they are eating – the list goes on. Shouldn't you also have a plan to take care of them if you are not around?

Rebecca Price is a Cleveland Heights resident and a member of the law firm of Gallup & Burns. If you have questions you can reach her at price@galluplaw.com or 216-621-4636.