Category Archives: Uncategorized

Listen to Your Mother, Boston

As a mother of 4 little girls ranging in age from baby to elementary school, Attorney-Mama Danielle G. Van Ess will be the first to tell it like it is:  

Motherhood is NOT for the faint of heart.
That’s why DGVE law®  is proud to sponsor Boston’s performance of Listen to Your Mother “LTYM” 2014, a series of live staged readings in 32 cities nationwide in celebration of Mother’s Day, “giving motherhood a microphone”. 
Listen to “live readings by local writers on the beauty, the beast, and the barely-rested of motherhood, in celebration of Mother’s Day.” 
10% of proceeds go to local charity for women & girls.

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Time for “The Talk”

   

The idea of confronting our parents’ mortality is indeed difficult, but this is a conversation (or series of conversations) that is crucial to you and your family’s well-being.  We are so used to being cared for by our parents that the transition to becoming their caregiver often sneaks up on us.  Preparing yourself ahead of time may ease the anxiety this transition can invoke.  That being said, remember that your parents may not want to be reminded of their mortality either… tact is necessary!
Top 5 ways NOT to talk to your parents about Estate Planning
1.        “Come on; let us see your will so we can establish once and for all who your favorite is!” 
While this may be gratifying to some, writing a will is an incredibly difficult process, imagine surveying all that you have acquired over your lifetime and then trying to determine what is fair, who is most likely to find value in what is in part, your legacy.  Be sensitive.  The larger issue is ensuring that a will exist, its location is known, and that any necessary updates are made.  When a parent dies without a will, the estate is divided in probate in court, and a judge, not your parent, decides who gets what.  And while this may be satisfying (Yes! You don’t have to take your mom’s Spoons from Around the World Collection!), the financial costs and potential trauma it can cause within the family is not worth it.  So, don’t ask them to choose favorites (you know it’s you anyway) but do ask if one exists.  Remind your parents that it is not about who gets what, you just want to ensure their wishes are followed.
2.       “This is the third time you’ve “lost” your keys, have you decided who is going to make your decisions for you when you get too senile to do it yourself?”
Frankly, no one wants to imagine their parents incapacitated, but should this occur, your parents need to designate someone to act as power of attorney.  Without this designation, a judge will decide, which can once again lead to costly court fees and family trauma.  This is also a good time to express if you have resignations about fulfilling this role yourself.  The person named to this role is given the ability to make legal and financial decisions should your parent be unable to.  
3.       “You’re looking a little… ‘tired’ lately, what is the status of your advance health care directives?”
Once again, no one wants to be reminded of their own mortality, but the best time to make these decisions is before someone becomes ill.  Advance health care directives include a living will, a health proxy, and a HIPPA.  Having clear, written instructions created while healthy, ensures that the emotions involved in dealing with illness do not impact decisions.  Without these instructions, heartbreak and even lawsuits could ensue. 

    4. “We were hoping to retire early, what are your plans for assisted living? We’d love to move in here.”  For the record, a friend of mine’s brother-in-law actually said something like this to his parents; it did not go over well.  The real question here is if your parents have made plans to cover the cost of long-term care.  Most long-term care homes are not covered by Medicare, and can be enormously expensive.  Long-term care insurance is something aging parents need to consider.  Help them (and your future self) by doing the research with them.

5.       And last, and probably the worst of all, what not to say to your parents when discussing estate planning, “I’m so tired of being broke all the time!  On a totally unrelated subject, have you named an authorized user on your financial accounts?”
Yikes!  This is an important issue, because should the account holder become incompetent or die, gaining access to funds can be insanely difficult.  To avoid yet another costly court battle, encourage your parents to name a trusted family member as co-owner of investments and accounts.  Again, if this is a role you are not willing to fulfill, now is the time to speak up.
While I joke, it is vital for your family to fully understand where your  parents are in the estate planning process.   They spent years investing in your well-being and future, an uncomfortable conversation (or two, or three) is the least you can do to invest in theirs.

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Busy Since Birth – Having It All Project


I am grateful for the opportunity Cheryl Stober recently gave me, via Twitter, to contribute my 2 cents to her Having It all Project on her blog, Busy Since Birth.  My interview question answers appeared here, and I am sharing them here.


Briefly describe your life and what you think makes it unique.
I am a full time mom and a full time lawyer with a busy little law firm I started a few years back and situated conveniently right in the family home I share with my husband, our three daughters (ages 3, 6, 8, and their little sister on the way), and a few pets.
 
I think it’s having a law office in our home that makes our lives a little less common.  After the birth of my first child I quickly realized that full time work outside the home in my nonprofit legal career wouldn’t have covered the cost of childcare for my newborn. It took me 4 years of soul-searching and floundering a bit, while working part time from home for former colleagues, to figure out how to fulfill both my career ambitions, be the type of mother I wanted to be, and figure out how to be able to afford to do both. There was a lot of risk involved but the reward is mostly very sweet.

What are some of your favorite tips and strategies for coping with the chaos?
I am obsessed with organization in every area of my life, personal and professional.  I’m certain it is the only thing that keeps me sane.  Like so many other modern busy moms of a few kids, I rely on technology, specifically syncing all the carefully-color-coded calendars with multiple reminders, to help keep track of all our schedules and appointments.

I was very late to discovering yoga about a year ago (after about 15 years’ worth of friends telling me that I of all people really should at least try it). I have not been consistent with my practice the way I aspire to be, but when I do attend to my yoga practice I feel calmer, more at peace, more patient, more in touch with my own body and mind, and physically healthier. Yoga should absolutely be covered as preventative medicine!

I also highly recommend chocolate and peanut butter to help power through some of the more grueling work projects, combined with coffee when energy is fading.

Please share a moment where it all broke down, and how you got through it.
How to choose just one moment!?!  There has to be at least one of those per day!  Image this scene for a little taste of a moment when it all broke down and what I did to ensure it wouldn’t happen again.
It’s about 8:30am on a weekday. I’m fully dressed for work in a suit, in preparation for a 9:30am meeting with new clients, packing my three daughters’ lunchboxes, serving and cleaning up breakfast, and inquiring about homework in backpacks etc. I tell the big girls to get their coats and shoes on and I head into my office, adjacent to our kitchen, to make sure the desk is cleared off and everything is ready for when I get back from dropping them all off at their three different schools. Shuffling papers around and setting up, I somehow missed the then five-year-old giving her then two-year-old sister a breakfast snack bar. The little one walked all around the kitchen, then into the hallway, into the entry office, bathroom, and finally my office leaving a trail of crumbs it would seem impossible for one little snack bar to make!

So now I’m on my knees cleaning it all up off the floor, watching the clock, starting to panic about everyone being late to school and getting back late for my new client meeting. I’m mentally beating myself up for our chronic tardiness, starting to bark at the girls, and then spiraling into full mommy tantrum mode, circling back to more mental self-abuse.  I get the little one’s coat and shoes on, get everyone strapped into booster and car seats, and as I’m driving them to school apologizing for my tantrum, whining about how hard this is and expressing doubts about whether I can do it anymore, clearly setting a fabulous example leading to a final piling on of mental self-abuse, before kissing them all goodbye and telling them to have a great day and I’d see them at pickup in a few hours.

I make it back in the nick of time, manage to pull it together for a two hour meeting with a lovely couple who have three boys the exact same ages as my girls.  After the meeting, I decided that for the sake of my sanity and in the best interests of my family and our clients, 10am would be the new earliest available appointment time.

Do you have any balance role models? Anything you try to avoid because it wouldn’t work for you?
Balance?  I’ll let you know when I achieve it outside the yoga studio.  As for role models, ideally, I would combine the best of all my friends and family into one superwoman. I would borrow what I envy from all my differently-situated friends, using the falsely limiting yet lazily convenient labels we apply to describe their basic situations: the “full time stay-at-home moms,” “full time work-outside-the-home moms,” “career women” who do not (yet) have children, and the dads who are navigating these same waters their own ways.

But myopically viewing the best of everyone’s situations without accepting the less than glamorous aspects and tradeoffs everyone makes is what gets us into trouble. Despite (or perhaps because of) my thoroughly ‘80s upbringing, since my first child was born in 2004 I’ve been disillusioned to learn that the mythical superwoman is just that, totally unrealistic.  Trying to be her is not only an unattainable goal but also a really unhealthy starting point.  I think the more we all tell it like it really is and pat each other, all of us, on the back for our own efforts and contributions, the happier we’d all be.

Think back to your 18th birthday. How is your life different from how you expected it to be then?
This question actually makes me laugh.  I’m pretty sure that back then I still maintained this (in retrospect) totally ridiculous, romanticized vision of myself as a super-stylish, well-rested, city-dwelling, very successful attorney-mama with a happy little baby on one hip (no spit-up anywhere on my clothes) and a briefcase in the other hand (that had inside plane tickets and an itinerary for a fabulous, exotic vacation with my equal-parenting near perfect partner).

And then there’s reality! I’m a minivan-driving, suburban-dwelling, mother of three (soon four), working my tail off to continue to build, grow, and nurture™ my business, and crashing at the end of every day with my equally tired husband. Sadly, the last true vacation we had (read: without children for more than a one night getaway) was on our honeymoon, over ten years ago. If only I could spin in circles like Wonder Woman to go instantly from makeup-less fleecy lounge pants at school drop-off to dark-circles-covered polished professional, instead of “wasting” the precious time it really takes to accomplish that total transformation.

I recognize and appreciate how very privileged we are to have all that we do, especially this of all weeks. I do my best to teach my children to recognize how lucky we all are too and to be empathetic and eager to help others whenever they can. Even on our hardest days, I wouldn’t change any of it. I never get the best of all worlds on any one given day, but I do get the best of all them some days and for me, that’s the kind of “balance” I guess I need.

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None Of Your (Family) Business or Kumbaya?

What happens when one member of a family-owned and operated business keeps other members in the dark? What do you do when some members of a family are highly personally and emotionally invested in the long term success of the family business while others want nothing more from it than an income stream or a watershed liquidation event? What happens when one family member tries to create and grasp at a golden parachute while watching another family member flying with tail flames? What happens when lifelong promises of financial security through the business and assurances that following one’s passion is practically safe, give way to the threat of financial downfall and insecurity? What does the older generation do when they start to see stirrings of discontent amongst the younger generation? Family relationships or the family business – which comes first?

As Charles Gallagher, director of the Family Business Forum at Virginia Commonwealth University’s School of Business in Richmond, Virginia noted in aMarch 14, 2013 piece by Ken Otterbourg regarding the Luray Caverns familybusiness dispute, “Family businesses can be quite successful, he said, but the managing and intermingling of blood and commerce, insiders and outsiders, requires a deft hand, planning and enormous amounts of trust.”



It’s true that when the litigation starts, it’s game over for everyone.  But what if there were a way to put the brakes on before things even started spinning out of control?  What if the family members created a solid, insured, legal and financial foundation beneath the business from the outset complete with answers to as many of the possible foreseeable problems they could?  What if they had established a longstanding pattern of holding facilitated family meetings, involving the business’ accountant, lawyer, and managers and shareholders to ensure that everyone involved understood all the reasons behind the business decisions?

What if, instead of litigators, instead of slash and burn tactics and posturing for stronger contractual agreements, there were a neutral facilitator brought into to help the various family members arrive at mutually comfortably agreeable solutions?  What if all the family members’ concerns were actually voiced, heard, reflected back, and addressed respectfully?  There isa better way and it does not need toinvolve holding hands and singing kumbaya (although that’s really not such a bad thing).

The necessary first step towards avoiding these family feuds down the line is spending the time, energy, and money to lay the necessary and proper solid legal and financial foundation, insure it from the ground up, and plan for best and worst case scenarios beforeanything pops up to test the strength and stability of the family ties and the family business. That means that even though it’s much more exciting to think about build-outs, wall colors, furniture, and a grand opening, there is critical foundational work that should happen first.  The time to bring in the lawyer is at the outset, when you are just starting to think about starting a business, not once there are problems threatening the business.

If you’re starting a new or running an existing small business on Boston’s South Shore, DGVE law® can help you build,nurture, and grow your business™ while preserving personal relationships and protecting family interests. We take a very holistic (or “kumbaya” if you prefer) approach to caring about your business just as much as you do.  But we’ll wear the traditional, lawyerly buzzkill goggles to help temper your necessary entrepreneurial enthusiasm when necessary and bolster your efforts and offer encouragement whenever appropriate.  We want your small business to succeed because if your business succeeds, your family succeeds and our community succeeds.  We’re a local small business trying to do the same.  We get it and we’re here to help when you’re ready.  Just call us at 781-740-04848 x.2 or email to astrid@dgvelaw.com.

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A Better Plan for Your Child or Grandchild with Special Needs

You love all your children or grandchildren equally and want to treat them that way, but leaving money for your child or grandchild with special needs in the same way as for your other children or grandchildren can be a recipe for disaster. You want to treat them fairly, but doing so in the most generic way can actually cause unintended consequences that could hurt rather than help them. In honor of World Autism Day today, please consider the following and see how it might apply to your family situation.
How extensive are your child or grandchild’s special needs?  Can he or she reasonably be expected to managed his or her own financial affairs someday?  Is he or she currently or likely to be receiving any forms of financial assistance at some point in the future to help provide for his or her medical and/or mental health care, education, or basic living expenses?  Receiving an inheritance or sudden influx of cash over which he or she has control can disqualify him or her from receiving such financial assistance.  Depending on the extent of extra expenses related to the child’s health, education, or living expenses, a family’s resources, an inheritance, or court judgment award in his or her favor can be depleted fairly quickly.
Even if your family is fortunate enough to have sufficient assets such that you think government benefits would never be necessary, there are still other reasons why leaving assets directly to your child or grandchild with special needs is less than desirable. For example, if your child or grandchild were ever sued as the result of an accident in which he or she were involved, any of his or her assets could be within easy reach and subject to a court judgment award against him or her. 
There are other, better ways to treat your children and grandchildren lovingly, fairly without causing such unintended consequences.  The best way to provide for a loved one with special needs is through a special needs trust, also called a supplemental needs trust.  A supplemental needs trust can provide for the supplemental needs, those over and above the very bare bones basics that basic financial assistance will provide for after a family’s own resources are depleted or, ideally, before the rest of the family has had to suffer financially to provide for the basics for the child or grandchild with special needs.  The purpose of a supplemental needs trust is ultimately to enrich the life of the beneficiary by providing for quality of life enhancements not just basic necessities. 
Another really important consideration, and area where the professional guidance of an attorney and counselor at law who understands this complex and ever-changing area of the law can help provide invaluable guidance, is who will serve in the distinct roles of trustee, care manager, and legal guardian for your child or grandchild with special needs.  A kneejerk first choice to succeed you may be one of the childs siblings, but consider the strain that may place on the relationship and whether the sibling wants to or would practically be able to accept that responsibility.  There may be a better choice to respect and provide for each siblings needs without causing other unintended consequences.  Your estate planning lawyer should also help you draft a letter of intent to provide your invaluable insight and guidance on how to best care and provide for your child with special needs.
I know personally from close family experiences that as the parent of a child with special needs, your daily lived experience of caring for your child may feel like it requires more time, more energy, more patience, more persistence, more money, more everything.  It can feel like one thing too many to begin the process of this planning now.  However, you will experience a huge mental and emotional burden lifted once you take the time to create the right kind of estate plan to specify who will help manage and care for your child’s assets and provide for his or her better quality of life for the long run should anything happen to you in the short run and when the time comes that you are no longer able to do so for your child. 
If you are the parent of a child or grandchild with special needs living here in Massachusetts, please contact my office today at (781-740-0848 x.2) or email (astrid@dgvelaw.com) to start to learn more about your options and choices. We promise to be respectful of your time, your energy, your patience, and your resources as we help you provide for your loved one in the best possible way with the least amount of additional stress possible. 

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Doing Your Will Using Your Whole…

So I saw this post today, via Get Your Shit Together, entitled “One Day, You’re Going to Die.  Here’s How To Prepare for It” – of course it caught my attention! 
I strongly disagree with the DIY approach to estate planning and the idea that lawyers are optional for most people.  It is nothing new or novel for people to inherently distrust lawyers (hello, Shakespeare!?!) and there are plenty of examples of why the public has that unfortunately over broad perspective.  That’s why I often feel compelled to use the qualifier “a good one” when I do tell people I’m a lawyer.  
I also understand that it is difficult to fully appreciate the value of something it’s hard to test oneself without the same training, expertise, and experience evaluating. But if you think it’s just pure self-interest on the part of lawyers who practice in the distinct area of estate planning that caution you not to try to create your own legal documents, even with the “help” of pre-made, online or boxed forms, you are doing yourself a disservice.  
I would be bored silly if all I did all day every day was plug my clients’ names into the same standard forms over and over with nothing more to it! When I review my clients’ family and financial information and discuss the specifics of their situations with them we dig deep into what their areas of concern are and how we can best address those to accomplish the clients’ unique goals.  I have actually been quite surprised to learn how widely those goals vary and to learn that what might look at first like very similar circumstances calling for a particular type of plan are not necessarily what my clients prioritize themselves and want to create.  That’s why the counseling piece is so crucial to really putting the right parts together to create a complete estate plan to fit the individual client’s needs.
The other invaluable role of legal counseling in the process is being able to share with my clients my experience and expertise to offer insight into possible unintended consequences of their first choices and alternatives they might never have otherwise considered.  I also routinely facilitate productive conversations between spouses to help them arrive at mutually agreeable decisions about such critically important pieces of their plan as who, and in what order, will serve as guardian for their minor children, one of many “hot button” topics in estate planning.
Lawyers who practice in this specific, complex, constantly evolving area of the law know about the most recent changes to probate, guardianship, and tax codes that affect proper planning.  We know what red flags to spot, what life milestones and markers suggest review and changes may be necessary, and how to deal with tricky family and complex financial situations.  Every family has its own complexities, though every client seems to think it’s only in their family!  Everyone has at least something, tangible or otherwise, that’s really valuable and meaningful to someone else. People routinely forget about certain assets, most people aren’t completely sure of which assets count as part of their probate estate or their estate-taxable estate, or what that even means and what the difference is between the two. People are often unsure of their assets’ current values or who is set to receive them.  I can’t even count the number of times I’ve seen married couples with minor children who have ex-spouses or boyrfriends/girlfriends or their parents or siblings as current beneficiaries of their retirement plans because they set those plans up and forgot to update that piece of it. And in almost every couple I’ve had the privilege to work with to date, there is one family CFO if you will, while the other is more or less “in the dark” about the specifics, details, and location of records and contacts for the family’s financial information.  
The truth is, at least amongst the vast majority of my peers, friends, and clients, almost all of us start out thinking we don’t have much and just need a simple Will, but almost all of us are dead wrong about that.  The trouble is we we only find out when we take the time to really learn, and that takes time and money we feel short on to start, or our loved ones find out the hard way when it’s already too late for us.  Clients come in and roll their eyes (or wipe tears) while sharing the horror shows of their experiences dealing with loved ones who didn’t take the time or spend the money to plan their own affairs.  Those clients who’ve seen it up close and personal don’t want to burden their surviving loved ones that way.
The other piece of the advice in that article I take exception to is the idea of shopping around for a lawyer via free consultations.  I think free consultations are a waste of everyone’s time.  Either the lawyer is giving away free legal advice without getting fairly compensated for it (and will come to regret it) or the client’s time is being wasted by having what amounts to little more than a meet and greet with the lawyer who hopes to convert the prospective client into a paying client.  Instead, I believe the lawyer should have processes and information readily available up front to help the prospective client evaluate whether that particular lawyer will be a good fit for that particular client.  Prospective clients in Massachusetts looking for a lawyer for Wills, Living Wills, Health Care Proxies, Trusts, Guardians for Minor Children and other pieces of an overall estate plan can read up on my blog, check out the DGVE law website, Facebook page, read this blog, and then call DGVE law’s Client Liaison, Astrid at 781-740-0848 x.2 for more information to help decide whether it makes sense to schedule an appointment to meet with me.  If it does, she’ll help schedule it and then when we sit down it can be a productive meeting leading closer to actually having all your ducks in a row instead of just finding out whether you might want to get started working with me.
And forget the idea that this is all something you can do in just a couple hours total!  If you want to do it right and make it yours, don’t wait until the week before you leave for a vacation and are thinking about that plane ride or just as you’re preparing for an elective surgery to call.  Please don’t wait until you are already diagnosed with a serious illness or your loved one is starting to lose some mental capacity.  Doing so just makes it what we in the profession refer to as “crisis planning” and there are consequences (and may be premiums for the rush) at that point.  Instead prepare to invest some time and valuable financial resources while you are healthy, well, and there is time to do it right.  Choose the right attorney for you and your family then trust her to use her extensive educational training and her professional and personal experience and continuing professional education as well as to call on her professional colleagues as resources when necessary to do all the heavy mental and physical lifting for you so you can go about living your life and enjoying your family now worry free.  You and your family are worth it.

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Post-Fiscal Cliff – The Song Remains (Mostly) The Same

While Congress wasn’t able to come to terms and avoid the dreaded “fiscal cliff” before the ball dropped, at least they did finally hammer out something. Regardless of where your politics lie and whether you agree with the deal or not—it’s important to know what the new American Taxpayer Relief Act (“ATRA”) says and how it affects your current estate plan.

What’s the Same:
Estate taxes, gift taxes, and generation-skipping transfer (GST) taxes remain 3 peas in a pod with the same basic exclusion amount, just adjusted for inflation, for 2013 now reaching $5.25 million. 

The marital deduction also remains the same and the tax on a decedent spouse’s estate is still delayed until after the surviving spouse’s death. ATRA also made “portability” of the marital deduction permanent allowing a surviving spouse to use any of the decedent spouse’s own exclusion amount. This means spouses can now transfer up to $10.24 million to their loved ones free and clear of estate taxes and most Americans won’t owe any federal estate tax upon their deaths.


ATRA did not reinstate the former pick up tax for state estate taxes and Massachusetts estate tax law remains the same with a $1 million dollar threshold for filing an estate tax return and a tax between .8 & 16% on the full amount for those with estates over $1M. Hint: life insurance and retirement count toward your total “taxable estate.”

What Changed:
After you’ve transferred up to the unified exclusion amount for gift, estate, and GST taxes, the top marginal tax rate is now 40 percent, up from 35 percent, still 10 percentage points shy of its 1986 rate of 50%. For a more comprehensive review of the history of the estate tax by the IRS, see:  http://www.irs.gov/pub/irs-soi/ninetyestate.pdf

Will Your Plan Still Work?
While ATRA bought some time, the debt ceiling debates in Washington continue and more change could result from a possible default, including adjustments to the gift and estate taxes. 

If it’s been more than a year since you created your estate plan, now’s the time to review it for current effectiveness.  If you’re considering making gifts, talk with your financial advisor, CPA, and attorney first.  

If you don’t yet have an estate plan and think you don’t need one because you don’t have an “estate”, think again! There are many otherreasons why everyone should have at least a very basic estate plan with a health care proxy and other medical directives including a living will, a financial power of attorney, and a Last Will and Testament  in place.  Read more about 12 Reasons You Need An Adequate Estate Plan here.

adoption – luck, love, and living together as a family

Today is National Adoption Day.
Congratulations to all the loving families sewn together through adoption.  
“Luck” ( from The Cat Walked Through the Casserole )
I didn’t come out of my mother, 

I don’t have my father’s green eyes, 
No one in my family looks like me,
People are always surprised.

I think we’re a happier family, 

Than if we were all kings and queens, 
We’re so lucky we all found each other, 
That’s what being adopted means.

– Pamela Espeland and Marilyn Nelson (Waniek)
This year our extended family grew, through adoption, by two tiny feet, making me a first time Auntie!
If your family also had the good fortune to grow through adoption, you’re probably tired of all the paperwork and formalities by now, but please make sure you prioritize creating or amending your estate plan to ensure that your child or children will be legally and practically well protected and cared for no matter what life holds in store next.

How to Control the Controllables for Your Babies

As the parent of a baby, toddler, preschooler, and/or elementary school child you know full well there is plenty that is out of your control. You pack everyone in the car for school and the baby has a blow-out diaper, the teacher calls you at work saying your daughter just threw up all over daycare, or your son pitches a fit in the dollar section at Target.
It can be overwhelming, but the saying “control the controllables” can help stem the feeling of powerlessness that so many parents feel. You can’t control when and where a tantrum will hit but you can make sure your toddler isn’t hungry or tired before you head to the store. In the same vein, you can’t control whether or not  something will happen to you and your spouse, but you do have control over who will care for your children and who will control your assets if something does.
Most parents know they should have a Will, but they don’t know that’s only one small piece of even the most basic estate plan.  Every parent has “an estate;” your estate is simply “all your stuff.” Whether all your stuff, is worth $1,000 or $1,000,000, that’s your estate.  
It’s up to you to decide what to do with your stuff – to whom, when, and how it goes is the plan you make for your estate. If you don’t make that plan, state law has a generic plan to put in place for you if anything ever happens to you and your children.
Making a very basic estate plan with a Will and all the other legal documents you need is an easy way to control your family’s well being in case of your disability during your lifetime and after your death, but just the concept can feel daunting on several levels.
First, thinking about serious accidents, illnesses, and death is obviously discomforting, especially when you’re so busy with young children who are bursting with life.  However, spelling out in legal documents who will make your medical decisions, manage your finances and your children’s, and serve as a guardian for your children is crucial. Otherwise, a judge will make these decisions for you without the benefit of knowing about any special circumstances or wishes you may have as parents.
Second, the fear of finding the right lawyer and wondering what it’s going to cost can stop some people in their tracks, especially if they’ve had a bad previous experience with another attorney.  For some advice about finding the right lawyer to help with estate planning, click here and sign up to receive a checklist of 20 Questions to Ask Before You Hire a Lawyer.

Through basic estate planning parents can ensure their children are cared for by someone who reflects their values and that everything they’ve worked so hard to earn will be properly used for their children’s care and upbringing, providing a measure of control in the somewhat chaotic (but fun) life of a young family.

Should I Designate My Children’s Guardian As Beneficiary of My Life Insurance Policy?

Back, back & I’m glad I’m back!  [Sorry, I’ve had that sung to the tune of the Mighty Mighty Bosstones “He’s Back” in my head for days now.]  I’ve badly neglected my blog the past couple months while I’ve been busy with myriad other things competing for my attention.  And while I’ve drafted several great posts in my head and even started several drafts here, I haven’t finished any – my bad. But my good friend, Texas Attorney Rania Combs, has graciously allowed me to poach and share a wonderful post she wrote the other day that I thought my readers would find helpful.  Enjoy!
I spoke to a young mother several weeks ago who wanted information on how to legally name a guardian for her minor children.
She explained that she and her husband had already designated her parents as the beneficiary of their life insurance and retirement plans, but they wanted to make sure her parents also got custody of the children.
These parents obviously knew that leaving all their assets to their children outright was a bad idea. It would likely require a judge to appoint a guardian to manage the children’s assets, and the children would get control of their inheritance at 18 years of age, when the may not have the wisdom or foresight to manage it wisely.
But rather than creating a will and establishing a trust for their children’s benefit, they decided to engage in some Do-It-Yourself planning. Unfortunately, by naming their children’s guardians as the beneficiaries of their non-probate assets, rather than leaving those assets to their children in trust, they risk leaving their children with nothing.
Below are a few of the risks associated with naming your children’s guardians as the beneficiary of your insurance and retirement accounts rather than providing for them in a trust:
  1. Giving your assets to someone else gives them legal ownership of those assets. They may decide they’d rather not honor their commitment to provide for your children, or perhaps not to the extent you had hoped.
  2. Even if you trust them to honor their commitments, life sometimes gets in the way. Because those assets legally belong to them, they can be exposed to their personal liabilities. For example, suppose they get in a terrible accident and seriously injure someone else. The assets earmarked for your children could be exposed to a judgment for those claims.
  3. What happens if the people to whom you left the assets die before your children. Since they have legal ownership of those assets you left them, those assets will be part of their estate and will pass to their heirs, who may not have made a commitment to you to care for your children.
  4. Not all your assets pass by beneficiary designation. If you have a home or financial accounts that don’t have a pay on death beneficiary, those assets will pass through your probate estate and will be exposed to guardianship. There is no such thing as an independent guardian of the estate in Texas. Rather, they are subject to the supervision of the court and must get court approval before taking most actions on behalf of the estate. As a result guardianships are very expensive and time-consuming.
Creating a trust will avoid these problems. Trusts are not just for the wealthy. They can be created in a will and funded when you die. If you have minor children, they should be an essential part of your estate plan.
Rania Combs is an attorney with a completely web-based law firm that helps Texans prepare their wills, trusts and estate plans online, without the usual overhead. For more information, visit Texas Wills and Trusts Online.