What and When Should I Tell My Kids?

Parents who have gone through the estate planning process typically ask what information they should share with their children and when. The answer requires balancing many factors, but can be boiled down to a simple concept: Take responsibility and own up to your decisions, and don’t leave it to your kids to fight about it.

First, if a child has been left out of a Will or is receiving less money than other siblings you may want to tell them so, and why. Clearly this is not a universal approach, but taking responsibility and informing them up-front allows the child to reconcile this fact. This will also help minimize your other children having to deal with the dispossessed child’s bitterness in the future, or feel as though they have to resolve it by giving their sibling some of the bequest you have left to them. While this does give the child time to plan a legal offensive, you (as the person with the money) have many more weapons at your disposal, such as trusts and accounts that avoid the publicity associated with Probate. Of course, you should NOT inform them there is a secret trust you have created to dispossess them. If there is open acrimony between that child and his or her siblings let the other siblings know your plans.

Next, if you have named a child as your health care proxy or power of attorney you should inform them of this when you believe they are responsible enough to handle your health and financial needs. You should also let the child who has not been named know. If you are about to have invasive surgery or are diagnosed with a terminal illness you should inform them if they are your living agents and give them copies of your power of attorney and health care proxy, and you will want to tell them where your Will is located.

I suggest never talking about estate planning matters with minors; the topic is a bit too grim for them to stomach. Conversely, if your parents are your designated agents you should let them know immediately.

Lastly, let your children know your attorney’s contact information. This will allow them to contact your attorney when you are in need of him or her.

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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Your Prenup: How Your Family Law Attorney Betrayed You

If you have a prenuptial agreement, chances are that the family law attorney who represented you betrayed you and didn’t even realize it.

 

I often tell clients to get a prenup if they are getting married later in life, and insist my older clients pay for their child’s prenup. And soon thereafter, much to my dismay, I see yet another prenup that unintentionally-yet-completely screws my client if his or her spouse dies unexpectedly.

 

Prenups serve one vital purpose: “Split Money.” There is usually a financial disparity between the parties when the couple marries, so the wealthier spouse naturally wants to protect his or her money from the other spouse’s financial grasp after a short marriage. So the prenup says who gets what if the marriage ends quickly. This makes sense since many marriages fail within 5 years, often leaving the couple with somewhat different financial circumstances than when they entered.

 

But what if a spouse dies unexpectedly, especially early in the marriage? Many family law attorneys automatically enter a second non-necessary aspect into the prenup regarding “Death Money” that denies the surviving spouse any of his or her spouse’s property without a Will (under “Intestacy”), an automatic spousal right to 1/3 of the deceased-spouse’s property (the “Right of Election”), and even minor-yet-important property such as the deceased spouse’s car, personal property, or small sums of cash in a bank account (known as “Exempt Property”). Basically, your matrimonial attorney just ensured you get nothing if you are in a happy marriage but unexpectedly and tragically lose your spouse.

 

Many family law attorneys insist a prenup must deal with both Split Money and post-mortem property. They claim that all that needs to be done is add a statement to the prenup ensuring an unexpected death will not invalidated the remaining spouse’s estate rights, or that they can include a clause stating the couple may draft a Will or Trust to supersede the prenup. And my response is “Be real guys: You rarely include an unexpected death clause in your prenups, and almost never tell your clients to draft a Will or change beneficiary forms after you get paid your retainer.”

 

Let’s face facts: A family law attorney is there to protect you if your spouse chooses to leave you, whereas an estate attorney is there to assist you if the unexpected occurs; one should not try to fill the other person’s role. By the time a loving couple has finished the decidedly-unromantic and taxing discussions regarding a prenup they usually have no strength left to update a Will or beneficiary forms until they have a child. Unexpected death can happen at any time, and now the prenup denies the breathed spouse of all the deceased spouse’s property. Do yourself a favor and educate your family law attorney to not automatically add a Death Money clause in your prenup.

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

College Kids in Trouble! Draft Your Child’s Health Care Proxy

Ah, the Ivory Tower, where high school kids aspire to escape to, and parents best hope for 4 years of peace and quiet. But with independence comes responsibility: Travel, driving, concerts, and protests. And drinking. Lots of drinking. And then comes a horrible injury or hospital admittance, followed by a parental realization: You are not allowed access to your adult child’s health care information, and cannot make decisions regarding their health care.

 

In most states, the age of majority is 18, and once he or she moves out of his or her parent’s residence they are considered an adult with all of the privacy rights that inure to adults.

 

The only individual who, by default, has access to your health care information and the ability to make health care decisions for you if you are unable is your spouse. This is a rude awakening for a parent who gets a call stating their child has been admitted into a hospital for over-drinking, or a car crash, or some other horrible incident. Or worse, the child can’t be found and the parent, presuming the worst, begins contacting emergency rooms. Again, the parent has the same right to the same information as a stranger: A hospital may confirm the child has been admitted, but will not share medical status. Then, once the parent finds their injured child, they need to initiate a Guardianship Proceeding to make anything other than the most critical of health care decisions. This expensive legal process is often taking place during one of the most frightening moments in a parent’s life.

 

This scenario can be avoided both legally and practically. Legally, parents should have their child execute a Health Care Proxy naming them as the child’s Health Care Agent before the child goes to school. This allows the parent the ability to both request the child’s health care information, and make urgent health care decisions, even from afar. The Health Care Proxy may even be shrunken to pocket-size, so the child can keep it in his wallet or her purse.

 

For practical purposes, a child should have an informal ICE [“In Case of Emergency”] card in his or her wallet that includes their parent’s names, address and phone numbers. In addition, most smart phones have an “Emergency Contact” function that is easily accessible without needing the phone’s password to access.

 

 

Make sure to prepare a Health Care Proxy for your child before he or she leaves for freshman year, and have them provide discrete means for you to be contacted in case unforeseen actions take place.

 

 

DISCLAIMER: Attorney Advertising. Please note that prior results do not guarantee a similar outcome. This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.