Estate planning 101 for single parents

Nobody likes thinking about what happens if they should become incapacitated or die. But we all need to have a plan in place for just these possibilities.

If you’re a single parent, the need is even greater.

You should have the following documents in place for yourself and your child:

Nominate a guardian

If you should become incapacitated or pass away, who will become the guardian of your minor children?

If the child’s other parent is surviving and has not lost parental rights, they will have custody of the children as a matter of law — it’s not guardianship; they are the legal parent.

But if the other parent is deceased or has had their parental rights terminated, a court will need to grant guardianship. In order to name whom you would like to become the legal guardian of your minor children, you need two documents.

First, name your choices for guardian in your will. It’s a good idea to name several people in order of your preference. For example, “My mother, Jane Smith, and if she cannot serve, then my brother John Smith, and then next, my friend Carol Baker.” There is no guarantee this is who the court will appoint, but weight is given to the parents’ preferences.

Next, be sure to complete a “Nomination of Guardian” in a document separate from your will. Should you become incapacitated and unable to care for your children, your will does not have any effect (you’re still alive), so a separate document is important. Be sure to name the same guardians you’ve named in your will to avoid any confusion later on.

Health care directives

A health care directive is a document that states who is authorized to make health care decisions for you if you are unable to, and gives general directions about the care you wish to receive. Every adult should have a directive completed.

If you have minor children, a “Nomination of Heath Care Agent” should also be in place. This is a document in which you authorize another party to make healthcare decisions for your children if you cannot. This is necessary when, for example, you and your children are in a car accident, and you cannot respond to authorize health care, hospitalization, or other treatment for your children.

A will and a trust

If you have minor children, you have every reason to get a will and trust in place. The will can set forth your nomination of guardians for minor children, as discussed previously. A trust can hold your assets (including life insurance proceeds and possibly retirement plan benefits) for the benefit of your children until they reach certain ages (e.g., half at age 25, one-third of what remains at age 30, and all of it at age 35).

The trust is managed by the successor “trustee’ you appoint in the trust document.

Even if the child’s other parent is surviving and the child lives with that parent, your assets may be kept separate in a trust and distributed by the Trustee only under the specific terms you set forth. In this way, your assets are not available to your ex-spouse, and the children also don’t receive the funds until they are mature enough to handle them.

If at your time of death, you have minor children and only have a will, your estate will go through probate, the assets will effectively be placed in a trust for the child, and the assets will belong to the child when they reach age 18. That’s an expensive and inefficient “plan,” but it’s what California has in store for you if you don’t take the time to implement your own plan by setting up a trust.

Children 18 and over

Once a child turns age 18, he or she is a legal adult. Thus, your nomination of a guardian is no longer needed, and your nomination of a health care agent no longer applies. Instead, be sure that your adult children (age 18 and above!) execute their own health care directive, power of attorney, and HIPAA form. This is especially true when the parents are divorced. Since both parents are the legal “next of kin” (for unmarried children), it can be crucial to have a document that says which parent can act on the child’s behalf.

As a single parent, you’ve got a lot to deal with. But getting these important legal documents in place can make things much easier in case of an emergency. When it comes to raising kids, the old adage “hope for the best, plan for the worst” is good to keep in mind.

Teresa J. Rhyne is an attorney practicing in estate planning and trust administration in Riverside and Paso Robles, CA. She is also the #1 New York Times bestselling author of “The Dog Lived (and So Will I)” and “Poppy in The Wild.”  Reach her at [email protected]