Thoughtful estate planning is important for all parents. But for single parents, a thorough and legally compliant plan is vital to ensure that their wishes are carried out.
In many ways, estate planning for a single parent is no different than that for married parents. All parents should have a will in place to dispose of property, to create a financial scheme for their children’s care, and to designate a guardian or guardians. A single parent, however, can face complicating issues driven by his or her situation, such as whether there is a surviving parent who will be responsible for the children.
Custody or guardianship
In matters concerning children, the court’s standard is the “best interest of the child.” When a custodial parent dies and the other parent is still living, the court will presume that custody will transfer to the surviving parent. This is true whether the parents were divorced or legally separated, and regardless of any guardianship designation made by the deceased parent. Of course, that is not a hard and fast rule. Sometimes the surviving parent is unable, unfit, or unwilling to care for the child. An estate plan should include any information or rulings by the court about the other parent’s fitness. If the noncustodial parent has legally waived parental rights, inclusion of that documentation is important. These are extremely complicated and fact-specific situations that require the advice of an attorney experienced in working with single-parent households.
The distribution of assets through a traditional will may not be the best route for a single parent, especially when a large inheritance is likely. In such cases, the parent might be concerned with the ability of their children to manage that windfall responsibly. A well-drawn trust that holds assets under the control of a trustee selected by the parent can be a better choice. In addition, the trust can allow for the parent to place restrictions on the distribution of the inheritance; for example, dictating that a child only receives a portion of the assets at certain ages, such as 19, 21, or 25. Such trusts also allow assets to pass to the benefit of the children without having to go through probate after the parent’s death.
Single parents should also have a plan in place should they become disabled or otherwise incapable of caring for their children. This plan should include a living will and a durable medical power of attorney, which will facilitate medical decisions. It should also include powers of attorney to handle financial arrangements for both the incapacitated parent and the children. Again, an experienced attorney is an important ally in preparing for these worst-case scenarios.