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Should parents consider child custody issues in estate planning?

When individuals are thinking of drafting a will, how many people, particularly parents, consider addressing child custody issues in their estate plans? In addition to child custody issues, Florida parents who are planning on drafting a will should in earnest consider how their financial assets will be distributed t0 not only the surviving spouse or partner, but also to their child or children.

When preparing a will, it is recommended that a parent explicitly name a guardian to take care of a minor child. However, it is very important to understand that if the child still has a parent who is alive, then naming a guardian in one's will other than the surviving parent does not necessarily mean that the guardian will get custody of the child. In fact, the law generally will always favor a parent, regardless of what's stated in the will.

Nevertheless, if the surviving parent is found unfit to take care of the child, then the guardian is likely to be granted custody. The guardian will have the authority to manage any estate, trust or assets that one bequeaths to his or her child until they reach the age of 18 and are legally able to manage it themselves.

In a will, one also can create a trust; however, one may choose to not fully fund the trust during his or lifetime. When drawing up a will, one can allocate the assets to be transferred to the trust after the parent has passed away. In doing so, the probate court will have to be involved. Since wills and any probate filings are in the public record, details of the assets type and value can be looked up by any person. If privacy is a concern, then one may want to consider having any estate, money and assets that are intended to be passed along to their children to be placed in a trust prior to death. This creates what is called a fully funded trust.

Most importantly, it is always a good idea to revise one's will as time passes. Tax and inheritance laws change, as well the individual's assets and net worth, which may, in turn, impact the individual's wishes or strategies to safeguard assets from probate and taxes.

Source: Forbes, "Five Estate Planning Lessons From The Paul Walker Estate," Danielle Mayoras and Andy Mayoras, Feb. 10, 2014

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