Estate Planning for the Adoptive Parent
by Matthew Rosenthal
Congratulations! You are about to become a parent. You have gone through all the steps, jumped through all the hoops, and are finally coming to the end of the adoption process. Now, you can review your checklist of things to accomplish. Checkmark after checkmark, as you make your way down the list, there is one item at the very bottom you may have forgotten – An Estate Plan. If you already have an estate plan, stick around, you may need to make changes.
What does estate planning entail? And how can it be used to ensure that your wishes are followed?
Last Will and Testament and/or Revocable Living Trust
A Last Will and Testament, at its bare bones, is a document that provides guidance to a court in how a person would have their estate passed to others. Through this document, a person would pick their beneficiaries and could nominate their partner as the Personal Representative.
A Revocable Living Trust can establish the client’s partner or another trusted individual as the trustee. What this means, is that the partner can be the person who oversees the individual’s assets after death or incapacitation (for assets that were put into the trust). Done right, the trust will provide privacy and the avoidance of probate and the court process. A trust will also allow you to control your assets after your death, by saying how you want them used. Trusts can leave money to your family: children, grandchildren, and future generations. They can leave money to charities that are important to you for years to come. They can provide a family home for your children’s children’s children.
Health Care Surrogate
The Health Care Surrogate allows for the appointment of another individual to be named as the person authorized to make health care decisions for the individual should that person be unable to make their own decisions. The utilization of this document would allow an individual to appoint anyone they choose. This would also override any next-of-kin arguments from family members. Like all the estate planning documents, this one is important not just for unmarried persons, but married people as well.
Power of Attorney
The Power of Attorney allows one person to act in financial matters for another. An example of this could be accessing someone’s solely-owned bank account or signing a check. When utilizing this document, anyone can act in the stead of the individual who granted the power. In Florida, the power is durable, meaning that it takes effect the moment it is signed. That being said, be mindful of that when choosing your agent.
Problems Estate Planning Solves
For a married same-sex couple, it will ensure the state and federal benefits of their marriage. If desired, can be used to avoid probate and maintain privacy.
For an unmarried same-sex couple, proper estate planning will ensure that your partner will have the legal rights to make health care decisions, financial decisions, and protect their right to inherit from you.
As a same-sex couple (married or unmarried) with children, it helps ensure the children will be able to inherit from both parents as well as be able to be cared for (legally) by both parents.
What do you need to think about now that you are adopting a child?
Whether you currently have an estate plan in place, or this is your first go at it, consider the following:
If your adopted child is a minor, have you considered who would be the guardian of the child should you and your partner pass away? Have you even had that conversation? Whether you can say the answer or not, one of the first things you will do in your estate plan is choose guardians. You will want to place the names of those guardians (and any back-ups) in your Will. You should also complete a stand-alone guardianship form which can act outside the Will.
Do you already have children? Did you and your spouse enter your marriage with children from prior relationships? If so, you will need to decide how each child is going to be treated. Are all children going to be treated equally? If your adoptive child is significantly younger than your other child(ren), you should consider if the younger child would need more financial assistance than the older one, should you pass away sooner.
Do you want your adopted child to inherit all your assets at 18? If the answer is no, you should be thinking about placing your assets into a Trust to be held for your child until certain events occur. These events are up to you. The assets can remain in Trust until a certain age or until certain life events occur. It can also be a combination of these and other considerations. Remember, a Trust can be modified over time. The decisions today are not necessarily the final decisions as you age. We put these documents into place as if you will pass away now. Changes can be made later as your family grows and your child matures.
Does your adoptive child have special needs? If so, you should consider a special needs trust. This will allow you to set aside money for your child’s care without jeopardizing your child’s right to receive government benefits.
While probably the last item to check off your list, estate planning may be one of the most significant things you do for your child. As you welcome this new member into your family, it is important to take the time to put these protections in place for their future.
Rosenthal Meyer, PLLC
Rosenthal Meyer, PLLC was founded by attorneys Matthew Rosenthal and Justin Meyer, who share the same commitment to providing client-centric legal services, with a concentration in business law, wills & trusts, probate, and real estate. The multi-state community law firm prides itself on its experience, approachability, caring about the outcome of the situation, and providing legal solutions that work. Their focus is on legally protecting clients through the evolution of their business, and through all stages of life. They take pride in getting involved with the communities they serve and building long-term relationships. For more information, visit https://rosenthalmeyer.com.