As an estate planning/wills and trusts attorney, I have the privilege of talking with many families and individuals of many different walks of life. Over time, I have observed that while there is not a category or classification of individuals or families that can justify avoiding estate planning (every adult needs at least a will and powers of attorney), there are some classifications of individuals and families that are in urgent need of estate planning. In this article, I will be identifying those classifications, and discussing the reasons for such urgency. I will be discussing a classification among those with the greatest need for estate planning – the single mom/parent.
I have had the pleasure of working with several single moms over the course of my career. Having two children myself that I am raising together with my wife, I am always impressed (and amazed) with how well these single moms are able to work full-time jobs, while raising children alone. Furthermore, the love that I see in their eyes, and hear in their voices as we talk about their children, is inspirational! (Please note that I have also, on occasion, met with single dad’s operating in the same fashion. As such, understand that the same principles discussed below apply in converse situations).
As our conversations travel deeper into matters involving estate planning, it is clear that single mothers want to make sure that if they meet an untimely death, their children would be cared for appropriately. It is then surprising (and in some cases frightening) to them when they’re faced with the futuristic reality that as a result of neglecting to prepare proper estate planning documents, their children, and the assets set aside for them, will likely be in the hands of their children’s father. With widened eyes, the moms then ask me “How can that be?!?!?” I would imagine that you may be asking the same question. Your answer, is below.
In Michigan (and I would imagine most jurisdictions around the country), intestacy laws generally require that when you pass without a valid will and/or trust, your assets (money/property that you own) will transfer to your spouse, through the probate process. If you are unmarried, your children become the beneficiary of the assets in your estate. Most parents typically want their assets to go to their children in such situations, so “no problem,” right? Well, the next step gets a little complicated.
In most cases, the children are minors, which leads to the following questions:
Who will be given custody of those minor children since you are no longer here? Your mom? Your sister? Godparents?
Well, in most cases, all of these answers are wrong. Who, then, will be the guardian of the children, you ask??? No one! The court will likely determine that there is no need for a guardian – if the father is alive. Courts will simply allow him, to have full custody of his children. Let’s continue, though: remember the assets of your estate were given to your children. These children are likely minors, and in most cases, courts will determine them to be legally unable to handle or manage the money/property. It therefore follows that the father of the children will have the opportunity to manage the assets on behalf of the children, until they are 18. I know, I know, not over your dead body (no pun intended) would you allow your assets to be in the hands of their father. Well, that’s exactly when it will happen, and unless it is proven that he is seriously unable to care for the children (drugs, abuse, etc.), there is really nothing that can be done to prevent him from obtaining full custody of his children.
So, what can be done in this situation?
While you are unable to prevent the father of the children from having custody of his children, proper estate planning can allow you to appoint someone else to manage your assets on behalf of the children during their childhood and beyond, thus limiting the father’s access in ways in which you determine to be appropriate, while caring for your children.
Oftentimes trusts are among the few chosen mechanism for accomplishing this future childcare certainty (and you thought trusts were only for the wealthy!)
For these reasons, it is my opinion that the single mom/parent is among the top two or three classifications of people in greatest need of solidifying their estate plan.