Updated: Nov 10
Protecting your family and assets if something were to happen to you is a necessary but challenging obligation. People don't want to think about death and what could happen to their family. Most likely you have questions such as: Who would raise your children? What's a health care proxy? How do you name guardians for your children? Who do you trust to help you prepare these things?
There are tools to help. One option is to create a Child Guardian Plan, which lists out the names of the people that you would nominate to be long-term guardians of your children. But did you know that even with a guardian plan, your children could end up in foster care until a judge can appoint that guardian? This is a potential that could happen…. I'll give you a personal example: I have two little girls, and their father and I wanted to name his aunt, who lives in Canada, to be their long-term guardian. However, during the COVID pandemic,
Canadian/U.S. borders were shut down which meant that if something happened to me and him, his aunt would not have been able to come down to pick up our girls! They could have wound up in foster care, and that's definitely NOT what we want! There IS a solution, and that is to name short-term guardians. Short term guardians would also be on your Child Guardian Plan to allow other family members or trusted friends to take care of your children until your chosen long-term guardian can be formally appointed by a judge. With that said there is a way to plan and protect yourself from the potential for disastrous events should something happen to you.
Another option is to name guardians in your Last Will and Testament. Just keep in mind: a will requires probate (court) and the will has to be reviewed and approved by a judge. Probate is time-consuming and can take anywhere from 6-18 months, sometimes longer, depending on what state you resided in. Meanwhile your children could end up in the care of someone you did NOT appoint or even foster care until a judge officially appoints your chosen guardians.
Probate is also expensive! There are court fees to be paid. In New York, those fees are based on the value of your assets. And while the probate case is pending, all access to your assets could be restricted. For example, if you have a mortgage on your house, your family may not have access to your bank account to pay it until the judge allows it.
And what if there's conflict? If you have siblings or children that are fighting over your assets, that all has to be resolved by a judge too, which can significantly delay the probate process and increase the legal costs. The good news is the judge will eventually determine all of your assets and distribute them according to your wishes. But it is expensive, and it does take time.
We encourage all our clients to create a comprehensive estate plan that includes a trust to help your family to avoid pricey attorney fees, court fees, and a range of other expenses, as well as precious time. This is because there is no judge and no probate if you create a trust. A trust is a private, legal document that you prepare with an attorney allowing you to control all your assets during your lifetime and pass to loved ones of your choice upon your death. Furthermore, it keeps your estate matters private, whereas a will, once probated, becomes public information.
At Law Offices of Leslie Sultan, we compare a trust to a purse, a LegacyPurse™! You put all your assets in the purse while you are alive: your property, your bank accounts, anything of value and when you pass away, you give the purse to your family. It's a gift that you create during your lifetime, and this allows your family to stay OUT OF COURT AND OUT OF CONFLICT.