Estate Planning For Young Families: The Job You Don't Want to Do But Must Get Done!

As the mother of a 6-month-old daughter and as an estate-planning attorney, this is a topic that is very near and dear to my heart. It is also a topic abouth which I am questioned frequently by friends and acquaintances who also have, or are expecting, children. I have heard many bashful confessions that estate planning is something people have thought about doing or know they need to do, but haven’t gotten around to doing. Others believe that they are too young and healthy for anything to happen to them. Some say they cannot afford the expense or the time required, some think they do not have enough property to make it worthwhile, and some are just uncomfortable thinking about and planning for death. While planning for the possibility of your death, incompetence, or disability may be considered akin to getting a root canal (or worse), it is also something that, once completed, can bring peace of mind.

Let’s start with the basics: Why do you need to have an estate plan in place? The number one reason is to ensure that your significant other and your 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 that you would? That is a pretty big gamble!

If you are legally married and do not have a will, then under Ohio law your spouse will inherit your entire estate, if 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 where your spouse will get a portion of your estate and your children will also get a portion of your estate. Will that formula adequately distribute your assets so as to take care of the needs of your spouse and your children? If you are not married, then your children would inherit everything from you and your significant other would get nothing.

Worse than property division, let’s presume every parent’s worst nightmare comes true: you and your spouse both die in a tragic accident together. 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 own 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 to do is participate in a court hearing/battle over who will become their guardian, particularly 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 that you have left to them. For some people this may be the same person, but you can also choose two separate people (sometimes the best caregiver may not be the best financial custodian). In my opinion, the number one reason to have an estate plan in place when you have young children is 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 and on. Shouldn't you also have a plan to take care of them if you are not around?

Rebecca Price is a member of the law firm of Gallup & Burns.