Parents of young children should be very proactive in establishing their estate plans. In the absence of a valid Last Will and Testament, parents often find that the default asset distribution under the Florida Statutes does not meet their wishes. This is especially true for blended families and those where some children are adults or may be otherwise provided for.
In addition to standard document such as the Last Will and Testament, Durable Power of Attorney, and Advance Healthcare Directives, you also need to consider provisions specifically for the minor children. The most important is determining guardianship.
In Florida, although the court is not required to appoint the guardian of your choice, the parents designations are typically chosen. Guardianship may be total or divided into “Guardian of the Person” and “Guardian of the Property”, meaning one person cares for the child and one person manages the property devised to them. Many times parents want a means to ensure property left to the children is managed as preferred. Establishing a trust is the best way to do that – you will get to designate a trustee and set conditions and dates for the release of funds.
Second, it is important to have plans in place for your child’s care during a circumstance in which you are unavailable such as due to travel or incapacitation. A Designation of Health Care Surrogate for a Minor allows someone of your choice to make healthcare decisions if you are not available. This person may be the same person your child is with while you are travelling or incapacitated or it can be a different person.
There are several issues to consider when making guardian or healthcare designations, choosing how your assets will be divided, and whether to establish a trust, including:
- Whether the prospective guardian or healthcare surrogate is able and willing to serve. Many parents first choice is a grandparent of the child, however, consider that if your children are very young this document could take effect years later – will they still be capable of fulfilling the role at that time?
- The age of your children and your spouse’s children, if a blended family. Consider whether you want to have equal or unequal distribution of your assets among your children. When you have both very young and adult children, some people feel more comfortable leaving a greater share of assets to the minor children.
- Where everyone is located. If all the persons involved in your child’s care are located in different places or even different communities, it may be difficult for them to collaborate when needed and the child’s well-being may suffer. It is preferable, when possible, to ensure the persons involved are within a comfortable distance from each other.