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Child caretaker designations in an estate plan

When parents are expecting or just had a new child, it can be important for them to think about the future. This includes planning for the possibility of tragic events happening in the future, such as them passing away before their child is an adult.

When a child's parents pass away while the child is still a minor, one of the big issues is who will now care for the child. Who cares for a child can have major impacts on a child's life. Thus, who would care for their child in such a situation is something parents generally very much want a say in. Unfortunately, there are certain things that could cause parents to lose the ability to have their preferences control what would happen in such a situation.

One such thing is not planning for this situation. In estate planning documents, such as wills, parents can specify who they would want to be their child's caretaker in the event they die while their child is still young. When parents fail to have an estate plan or fail to make such a designation in their estate plan, they leave control of who would care for their kids if they died to things other than their wishes.

Another thing that could result in a pair of parent’s desire for who would care for their kids if they die while their kids are young not being met is if they did designate a caretaker in their estate plan, but the named individual either can't serve this role or opts not to accept the role. If this occurs and there is no contingent caretaker designation, things basically are in the same situation as if the parents hadn't done any planning for the caretaker issue. Things parents can do to try to prevent this problem from arising include:

  • In addition to making a child caretaker designation in their estate plan, also making a contingent designation.
  • Talking with the individual they plan to name in a child caretaker designation in their estate plan to make sure the individual would be willing to accept the role. 
  • Updating their estate plan when things occur that make it so their current caretaker designation wouldn't work.

Estate planning attorneys can provide new and expecting parents with guidance on child-related estate planning issues, like caretaker designations.

Source: Nasdaq, "Planning for Expecting Parents," Mary Beth Storjohann, Oct. 21, 2015

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