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Central Iowa Lawyer Explains How to Protect Your Children in Your Will

Posted by Merlaine Mosley | Feb 24, 2020 | 0 Comments

Are you a parent with minor children? Have you ever thought to yourself “What would happen to my children if I suddenly died or became disabled?” This is a legitimate concern and is probably what brought you to this page. You are probably wondering how to begin the process of ensuring that your children would be well take care of in the event that you are no longer able to care for them either because of death or incapacity.  Rest assured…you have come to the right source for information. 

In planning for the care of your children, you need to start with the foundational preparation, which includes the drafting of a Will and a Kids Protection Plan®. A Will is a legal document that contains the details of your personal desires for how your personal property and any additional assets will be divided among your beneficiaries after you die.  But…it does not end here.  If you have minor children, a Will should also contain your personal wishes in regards to your minor children, in case of an unfortunate death or disability. This is what we would refer to as a Kids Protection Plan® which are a set of documents that outline in great detail the names of temporary AND long term guardians for your children, instructions for how you would like your children raised and what would you like to happen to the assets that you are leaving behind for your children.  A Kids Protection Plan ® helps to guarantee that your children are raised by who you want and the way you want. 

In the state of Iowa, it is seemingly easy to create a Will, being that there are no requirements of what needs to be in the Will to make it valid. Therefore, as long as the Will is in writing and has the required witnesses and necessary signatures, it will be considered valid in probate court. However, I would never recommend anyone walk this road alone without the trusted counsel of an attorney by their side or simply go through an online Will Drafting service because the stakes are just way too high.  The mantra "you pay for what you get" is so true in this case.  Why would you trust your life savings and children to an algorithm when you wouldn't even trust the repair of your roof to just any John Doe? I'll actually discuss this topic in more depth at a later post but for now, let's stick to the original topic at hand. Just as much as you would want to ensure the proper distribution of your property and assets, it is even more important to take even more care in what happens to your minor children, in the event that you are no longer able to care for them.  In fact, this is the most critical aspect of your Estate Planning.  Hiring a Central Iowa Lawyer to help prepare a Kids Protection Plan® and a Will would be a very wise step to take. 

Is a Kids Protection Plan® really necessary?

Wholeheartedly, yes! Having a Will alone is insufficient for the planning of your children's well – being.  First of all, a Will is only effective when you die and is not binding during life.  Since a Will is not effective during life, it only satisfies your wishes regarding your children after death.  But what if you become incapacitated? How would the courts decide who to care for your children then? That is where the Kids Protection Plan® comes in.  It aids the court in deciding who to take care of your children during incapacity and death by naming temporary and long – term guardians.

A Kids Protection Plan® is also necessary because it ensures that your children are never placed in the care of strangers or an unfit relative.  For example: Imagine you are recently divorced with 3 beautiful children, Mary, Matthew, and Marcus (ages 3, 7 & 8). Although your ex-spouse loves his children, you consider him to be an inadequate parent due to his alcohol addiction; hence, the reason you divorced him in the first place. Knowing that if you were to suddenly die or become disabled to the point you couldn't even care for yourself, and that your children would automatically be placed under the care of the surviving parent is concerning to you. Unless you take the appropriate steps in setting up your preferred legal guardians, this will indeed happen to your children if you were unable to care for them. Let's imagine for a moment that the biological father is not only a heavy alcoholic but has also been in and out of jail due to Public Intoxication since your divorce. Later, you are involved in a terrible accident which results in your complete incapacitation requiring months of hospitalization.  Now the court has to decide who would be the best person to care for the children, i.e. guardianship.  A review of the biological father's record reveals that he is unfit to care for the children based on his history of alcohol abuse and past crimes.  Although preference is given to the biological parent, it is not a guarantee that the courts would choose a parent just because of blood relations, especially if it would not be in the children's best interest.   The courts may look at other factors as well but everything else aside, the courts would probably look to another close relative to care for the children in such a scenario.  Let's further imagine that the only close relative in this case is your ex – sister – in – law.  She is a single woman who has done very well for herself. She has a job that pays well and recently purchased a 4 bedroom home where she stays with her two cats. On paper, your sister in law seems like she would be the perfect solution to this problem and the court deems her fit to care for your three children. However, there is one major problem.  Although your ex-sister in law is tolerant of children, she has admitted to you several times that she doesn't care for children and never wants any of her own, and all she cares about is her career.  In fact, she is a workaholic who likes to party hard on the weekends as a form of stress release.  What the court doesn't know, is that if it were up to you, she is the last person you would ever want having guardianship over your children. You value family life and would want your children to be raised in a very nurturing and loving environment – which are the very two characteristics that you know are lacking and your children would be deprived of if your children were to be given to your ex – sister in law.  The judge, a total stranger, will probably decide that it is in the children's best interest to live with your sister in law who only agrees to the guardianship out of guilt rather than her own pure genuine love for the children.  If you were able to communicate, you would tell the judge to give the children to one of your dearest friends who is endearingly known by the children as “Aunt” Maria who is an older and retired elementary school teacher who lives in Florida.  Because “Aunt” Maria is retired, that means she is on a limited income and lives in a small 2 bedroom house but she absolutely adores your children and you know she would love them as if they were her own.  This unfortunate scenario of the wrong guardian being chosen happens all too often because of improper planning. 

Lesson #1 It is very important to not only name long – term guardian as part of your Estate Planning but also short – term guardians in the event of your death and/or incapacity.  You must also take into account the scenario where your long term guardian may not be able to serve immediately – i.e., in case of out of town nominees.  Lesson #2 A Will does not guarantee that the person you nominate will be chosen, it simply gives the judge a starting point.  A Kids Protection Plan® allows you to solidify your wishes by including in grave detail what you want for your children, even down to how they should be raised according to your morals and values.  It also allows you to specify who you would not want raising your children and why.  The latter document is purely confidential and is only viewed by a judge in the event that an unwanted guardian steps forward and there is a fight as to who should be chosen as guardian.  Now that you know you need to name guardians for your children, you may be wondering how do you do that?

There are several factors you want to consider prior to preparing a Kids Protection Plan® and guardianship documents in Iowa. I explain these factors below:

  • Family or Friend: As previously mentioned above, if no guardianship is already set in place, the court will immediately consider kinship when deciding the future of your children. Is this what you want? Or would you rather a close friend or another distant relative look after your children?
  • Additional Children: If you are leaving behind more than 1 child, you will want to consider the family size of the person/couple you are considering for guardianship. Does this person/couple have children already, and how many? Would it be a burden to leave my child(ren) with them?
  • Finances and Money Matters: Money seems to be a high factor on many parents' minds, but don't let it be a factor that you worry about! A guardian is responsible for the overall well-being of your child, but it should not be part of the guardian's responsibility to financially provide for your child/ren - that is what life insurance is for.  A parent should consider obtaining $500,000 of coverage per child because that is the average cost for raising a child in America.  If you have four children that means you need at need at least two $1 million dollar policies.  Since life insurance should cover the financial care of your minor children, you do not need to allow money to be a factor in deciding against your first pick.   Let's say that your number 1 choice is a couple named James and Jane (both age 35). They never had any children and live right next door to you. Whenever you needed to leave your children in the care of someone, they were your go to choice. They absolutely love your children and have the same values that you hold. You know they would be more than happy to take care of your children if the situation ever called for it. However, James and Jane never had much money. In fact, James works while Jane stays home. Fortunately for you and your little ones, James and Jane would not need to worry about finances when it relates to the care of your children because you would have done the right thing by obtaining sufficient life insurance.  Jane can continue to stay home and raise the children and James does not feel pressured to work multiple jobs to make ends meet.  Your good decision to work with a Central Iowa Estate Planning Attorney and put together a Kids Protection Plan® helps to tremendously alleviate any stress potentially experienced by James and Jane in having to suddenly care for three children. 
  • Location: Is the potential guardian local or does he/she live out of state? It would be an easier transition for the child/ren if they do not have to change daycare providers or schools. Having someone local would definitely help to maintain a form of normalcy which is especially critical during a moment in a child's life that is obviously very traumatic.  A child having to uproot and move to a different neighborhood or state even may be re-traumatized – first, by the loss of a parent/s and second, by the loss of their home, teacher, friends, and just about everything they have ever known about their existence.  On the other hand, an out of state choice should not be totally out of the question if that is your only option.  It may be better to have the children move to Florida and live with your close friend than with your ex – sister – in – law without any child – rearing experience.  
  • Age & Ability: Any adult of legal age can become a guardian, but when choosing a candidate for guardianship, age and ability should be a factor to consider. Is this person just out of high school? Just out of college? Are they well advanced in years? Are they able to properly care for children? So even though you may know some individuals/couples that are young and old, and would be willing to care for your children if needed, they may not be the best candidate long term.
  • Work: What does this person/couple do for a living? Do they have to work long or late hours regularly? Do they have to travel frequently? Do they leave work and their work follows them home? These are all questions that need to be raised when deciding on a guardian. You may not want your kids to be raised by a workaholic, or by someone who will be absent often because of business travel demands.
  • Health: What is the physical and mental state of my friends and family? Who would be at a disadvantage physically? Mentally? Emotionally? Spiritually? Consider if any of your candidates are battling an illness that could take their life in the next couple of years, or if they have to take all sorts of medications that leave them drowsy, tired or stressed. Do any of your candidates suffer from depression or anxiety?
  • Religion: If spiritual convictions are important to you in the raising of your children, you will want to consider their religious values because this person would have a deep impact on your child's religious views or lack thereof.
  • Their Spouse: If the guardian you are considering for your children is married (or single and could potentially marry), you will want to consider whether you are okay with your nominated guardian co – parenting your children with their spouse or what if something happened to your guardian nominee, would you want their spouse maintaining guardianship. I always advise my clients to nominate more than one person to serve as guardianship for their minor children, in the event the first named individual is unable to serve and to specify if one or both spouses is a requirement to serving as guardians. For example, Jane and Mark, collectively, but if Jane dies or becomes incapacitated, then Martha Stewart, individually instead of Jane and Mark, then Martha individually.  The latter example does not specify that the children are to go to Martha in the event Jane dies or becomes incapacitated, therefore, the courts would probably assume that you would have desired that the children stay with Mark.  A Kids Protection Plan ® drafted by an experienced Iowa Estate Planning attorney can definitely help to avoid these common pitfalls. 
  • Consent: It's one thing to want this or that person to take care of your child, if you became unable to do so, but it's crucial that you ask this person/couple for permission first. The very people you may want, may not want to take on that responsibility.

If you are thinking that this is a lot of information, do not worry! It is a lot of details and important factors, but you do not have to go through the process alone. A Central Iowa Lawyer can help you put together a Kids Protection Plan® and a Will or Trust in Iowa. In fact, here at Mosley Law & Associates, P.C. we will not only help you get all your documents together, but we will make sure the process is SIMPLE and EASY. We'll handle all the unpleasant work of dealing with the big legal terms, while you handle the pleasant work of just sharing your vision with us! Call us today to discuss how we can help protect you and your children as we become your Personal Family Lawyer ® and Local Lifetime Lawyer while also becoming your Trusted Advisor by dialing 855-700-9261 or using our easy and convenient contact submission form available here.

About the Author

Merlaine Mosley

Merlaine was born and raised in the sunshine state of Florida until her destiny led her to Drake Law. She had plans on moving back to Florida after she graduated from law school but decided to stay in Iowa after she decided to marry her husband who happen to also be from the south. Both being fro...

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Mosley Law & Associates, P.C. is committed to answering your questions about Wills, Trusts, Trusts Administration, Asset Protection and Probate law issues in Ames. I’ll gladly discuss your case with you at your convenience. Contact me today to schedule an appointment.

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