The ongoing pandemic and an increase in COVID-19 cases caused by the Delta variant have shone a light on how important it is to name a guardian in your will, someone you can trust to care for your children should you die. No one wants to think about such a tragedy happening to their family. However, what the past year-and-a-half has taught all of us is that no one is beyond the reach of this virus.
Just this month, two parents in San Bernardino County, California, died from COVID-19 two weeks apart, leaving behind five children, including a newborn. The child's mother, Davy Macias, age 37, was 34 weeks pregnant when she became sick. Doctors delivered the child while she was already intubated and dying, which meant Davy never got the chance to hold her baby. Davy's husband, Daniel, who was 39, died two weeks later. Both were unvaccinated.
The children are presently in the care of their paternal grandparents. Speaking to an ABC News affiliate, Daniel's mother, Terry Macias, said of the tragedy, “We didn't see it coming. COVID doesn't discriminate. It's the luck of the draw, and it could happen to anybody.”
To date, 676,000 people in the U.S. alone have died from COVID-19. Worldwide that number has surpassed four million. Many of these people were parents, underscoring how important it is to make sure your existing will accounts for your children, specifically, naming a guardian for them in the event you die.
What is a will and why if you're a parent should you have one?
A will is a written document that allows the will's creator, known as the testator, to name the individuals they would want to handle various tasks on their behalf once they die. Those tasks include disposing of the estate — distributing money, property, and other assets to any named heirs. A will also provides the testator an opportunity to name a guardian to care for their minor children in their absence.
Although it's unpleasant to think about, naming a guardian to care for any minor children you have is critically important. Failing to do so could result in family disputes over the children's living situation. Disputes like these could ultimately place your children's fate in the hands of a judge, who might not do what you would've wanted.
For minor children, your will can include a provision calling for the creation of a testamentary trust on your death. That trust would become a catchall for any inheritance you wouldn't want your children to have access to until a certain age. It also allows you to make funds available for certain circumstances, such as college tuition, for your children as they become young adults.
Similarly, the proceeds from any life insurance policy naming your children as beneficiaries can also be transferred into a testamentary trust on your death. A will also gives you an opportunity to name a trustee, the person you would want to oversee the management of the testamentary trust or any trust you create during your lifetime.
What if you're a parent and die without a will?
In Washington State, if you die without a will, also known as intestate, the state will instead oversee the distribution of your property. The conventional distribution in Washington State depends on whether you're married, whether you have living children and whether you have parents still living.
If you die with a spouse and children but no will, your spouse will inherit all of your community property and 50 percent of your separate property. Your children will inherit the other 50 percent of your separate property.
If you die with children but no spouse and no will, your children inherit everything.
If you die with a spouse and living parents, your spouse will inherit all of your community property and three-fourths of your separate property. Your living parents will inherit one-fourth of your separate property.
If you die with a spouse and no living parents, your spouse will inherit your community property and three-fourths of your separate property and your living siblings will inherit the remaining one-fourth of your separate property. They will be left to argue about what's community and separate property in court if they disagree with your spouse.
If these scenarios don't reflect your intentions, it's best to name your heirs in your will beforehand. A Seattle estate planning lawyer can help.
What is a guardian and why if you're a parent do you need to name one?
A guardian is a person you appoint in your will to become the legal caretaker of your minor children after your death if your children don't have a surviving parent. The guardian becomes responsible for the physical safety of the child, their property, and financial affairs until your child becomes a legal adult.
Legally, this is known as being a fiduciary or being required to act in the child's best interests. While guardianship can be designated in a will, this designation does not override the other parent's custody of their child.
To be a guardian in Washington State, you must be at least 21 years old (unless the guardian is a parent), not have any criminal convictions related to dishonesty, neglect, or usage of physical force, or any other crimes related to the responsibilities of a guardian, and the court must find the appointed guardian to not be unsuitable. That said, a court may choose to consider a relative to become guardian even if they have had a conviction in the past, depending on specific circumstances. Additionally, starting in 2021, a guardian must undergo training administered by the court.
Moreover, in 2021, Washington State adopted new guardianship laws that allow for the non-parent guardian to ask for guardianship of a minor rather than through non-parent custody orders. This can be done by filing in a Washington court. The non-parent guardian would need to prove that the current parent or guardian is unfit or that the parent raising the child would hinder the child's wellbeing.
If you don't have a will or have a will but don't name a guardian for your minor children in it, anyone can step in and apply to the court in the event you die. At that point, the future of your minor children would become uncertain. Already a time of incredible sadness and grief, your death shouldn't be the reason your family gets torn apart, but instead, the reason why your family comes together.
Name a guardian in your will for your children with a Seattle estate planning attorney today.
Planning for where your minor children will live and who will manage their inheritance if you die might not be on your list of favorite things to do. However, taking time to think about the what-ifs while you're alive and well can make a huge difference in the lives of your loved ones if you pass away unexpectedly.
At Elise Buie Family Law Group, our Washing State estate planning attorneys understand the seriousness of the decisions you make now and how they can impact the lives of many for years to come. Call us today.
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