FAQs About Protecting Minor Children in North Carolina

Jackie Bedard and the CFEP team have written these frequently asked questions for those with concerns about how to best protect minor children in the event they are gone.
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  • What's a Revocable Living Trust?

    There are many different types of trusts. One of the most commonly used is the Revocable Living Trust (also known as RLT or Living Trust). Essentially, "revocable" means you can change your mind, and make changes to the trust—including restating the entire document with new terms. Let's assume that the fancy words "your assets" just mean "your stuff."

    A revocable living trust is like a box with an open top. You can put your stuff in the box and take your stuff out at any time. When you set up the trust, you put all of your stuff, such as your home and bank accounts into the trust. Maybe a few months later, you open a new account at the bank. It can go in the trust.  Then, the following year, you take out some stock in the latest wonder company—you can put it in the trust. A few years later, you decide to sell your home and buy a new home in another neighborhood. You can take the old home out of the trust and sell it, and then when you find your new dream home, you can purchase it and put it in the trust.

    You appoint yourself as the initial trustee of the trust.  The trustee is the person that is responsible for managing the trust assets. If you become incapacitated or when you die, the trust document includes your written instructions specifying who takes over as successor trustee and what they are supposed to you with your stuff. The trust holds everything securely so that your family should not have to face the horrible prospect of probate at the time of death.  

    Additional information:

    To learn more about common estate planning issues, check out our free guide, Estate Planning Pitfalls: The 12 Most Common Threats to Your Estate & Your Family's Future, or to discuss your estate planning concerns, please call our office at 919-443-3035 or use our contact form.

  • What's the Difference Between a Testamentary Trust, Revocable Living Trust, and Irrevocable Living Trust?

    Estate Planning PitfallsThere are as many different types of trusts that may be used for different goals.  First, let’s cover some basic terminology:

    • Trust is a contract between a Trustmaker, a Trustee, and the Beneficiaries.
    • The Trustmaker (also sometimes referred to as the grantor, donor, or settlor) is the person who creates the trust instructions and transfers property to the trust.
    • The Trustee is the person who administers the trust according to the instructions provided in the trust document.
    • The Beneficiary is the person or entity who benefits from, or will benefit from, the Trust.
    • There may be more than one Trustmaker, Trustee, or Beneficiary of a Trust and the same individual may serve in more than one role. For example, the Trustmaker may also appoint himself or herself as the initial Trustee of the Trust.

    Trusts can be used for a variety of purposes, such as:

    • Providing for the future management of assets if you should become incapacitated.
    • To avoid probate upon your death.
    • To provide for the management of assets on behalf of a young or financially irresponsible beneficiary.
    • To provide for the management of an asset that is to be shared among multiple beneficiaries such as a family vacation home.
    • To limit a beneficiary’s direct access to assets, particularly if the beneficiary is a big spender, has a substance abuse problem, or other similar concern.
    • To protect assets from future lawsuits, creditors, or divorce.
    • To reduce income or capital gains taxes.
    • To reduce estate or gift taxes.

    Trusts are not one-size-fits-all. Trusts must be customized to carry out the individual Trustmaker’s wishes.

    Testamentary Trust

    The formal name for a Will is a Last Will and Testament. The term “Testamentary Trust” is generally used to refer to a Trust that is written into a Will and does not take effect until after the Trustmaker dies. For example, if you have minor children, you might specify that if your children are still below age 25 when you die, the assets of your estate should be held in trust for your children. You can amend or revoke a Testamentary Trust by changing your Will. However, after your death, a Testamentary Trust usually becomes irrevocable (see below).

    Our Heir Safeguard Testamentary Trusts are a popular tool for leaving assets to beneficiaries protected from future lawsuits, creditors, or divorce.

    Revocable Living Trust

    A Living Trust is a Trust established by the Trustmaker that becomes effective while the Trustmaker is living. A Revocable Living Trust is a Living Trust in which the Trustmaker has retained the power to modify or revoke the Trust at any time.

    Revocable Living Trusts are a common estate planning tool for avoiding probate.  A Revocable Living Trust may also provide several other benefits such as leaving things to your beneficiaries protected in the event that your spouse remarries, or protecting your beneficiaries from future lawsuits, creditors, or divorce.

    Irrevocable Trust

    Many people think that an Irrevocable Trust is a trust that cannot be changed or modified, but this is wrong. An Irrevocable Trust is a trust that contains at least one provision that the Trustmaker does not have the power to modify by himself. It’s possible that the Trustmaker may have retained several powers including the power to change the beneficiaries of the Trust.

    As stated above, a Testamentary Trust generally becomes irrevocable after the Trustmaker’s death. In certain circumstances, an Irrevocable Trust may still be modified by court order or by following specific provisions under the Uniform Trust Code. Such irrevocable trusts are a popular tool for leaving assets to a beneficiary protected from financial immaturity or irresponsibility, or future lawsuits, creditors, or divorce.

    An Irrevocable Living Trust refers to an Irrevocable Trust created while the Trustmaker is living. The most common reasons for using an Irrevocable Living Trust include asset protection and tax planning.

    Want to Learn More About Wills & Trusts?

    Feeling overwhelmed trying to sort out your options? Many of our clients have told us that they felt overwhelmed when they first began planning, but with our help, we helped them make sense of the options and design a plan to fit their goals. We've empowered thousands of Wake County-area residents to take control of their future with their estate planning and long-term care planning solutions.

    To get started, register for one of our upcoming seminars, download our free guide, Estate Planning Pitfalls: The 12 Most Common Threats to Your Estate & Your Family’s Future, or call us at 919-443-3035.

  • What is a Living Trust and Why You Might Want One?

    Probate can be a time-consuming and often costly process when administering your estate if you have a will. What if there were a way to specify when and how you want your children to receive their inheritance, who will manage it while they are younger, all while avoiding the tedious probate process?  That’s where a Living Trust comes into play.

    A Living Trust is a set of instructions from you designed to authorize someone you designate as “trustee” to administer your trust estate in the event of you become incapacitated or in the event of your death.  Assets that are titled to a Living Trust generally do not have to go through Probate—thus avoiding many of the unnecessary costs and delays associated with the probate process.

    However, there are other reasons besides avoiding Probate to have a Living Trust, including protecting beneficiaries from future creditors, lawsuits, divorce, or disability, or providing for the continuing administration of the estate for a minor beneficiary. In addition, privacy and reduced costs of administration are often additional advantages of a Living Trust.

    There are many different types of Living Trusts that may be used for different purposes. 

    Additional Information:

    To learn more about common estate planning issues, check out our free guide, Estate Planning Pitfalls: The 12 Most Common Threats to Your Estate & Your Family's Future, or to discuss your estate planning concerns, please call our office at 919-443-3035 or use our contact form.

  • Who Would Make Medical Decisions for Your Minor Children?

    God forbid, but if your family is ever in an accident, who would be authorized to make medical decisions for your children if you’re unable to?

    Did you know that you can authorize who can make medical decisions for your child if you’re unable to? If you have minor children, this is a medical authorization for your minor children is a critical component to your estate planning. It’s one of the many important components of our Children’s Safeguard Plan

    You see, we’ve thought long and hard about all the various “what if” scenarios for families with minor children and what we could do to better protect your family.  That’s how the Children’s Safeguard Plan came into being. We were seeing far too many parents with “cookie cutter” wills that did too little to protect their young children. We wanted to provide a better solution to the unique planning concerns of young families like yours.

    Free Guide for Parents with Minor Children:

    If you have minor children, make sure you check out our free guide, on Children's Safeguard Planning, that covers the unique issues involved in estate planning when you have minor children, including naming guardians and protecting their future. Or, contact us to discuss the best way to get started at 919-443-3035 or via our contact form.

  • Why is it important to legally name guardians for my minor child? Can’t I just tell my family what my guardian preferences are?

    Ultimately, if you were to die while your children are still minors, the courts would name guardians for your children.  It’s important that you make your wishes clearly known by legally documenting your choice of guardian.  Only you know best what your hopes and dreams are for your children and you know your family far better than a judge.

    It’s especially critical that you nominate guardians to avoid family feuds that can be extremely stressful for your children and expensive and time consuming for the rest of the family.  It’s not uncommon that more than one grandparent, aunt, uncle, etc. will step forward petitioning to become guardian of the children. 

    Furthermore, it’s critical that your nominations be legally documented to avoid any confusion or family disputes.  One of the most egregious stories that I’ve come across was of the Barber family in California.  The Barbers were a young couple with three young boys.  During a family road trip, they were involved in a fatal car accident in which both parents died and the boys survived. 

    In the months that followed, more than one family member stepped forward petitioning to be guardian of the boys and things spiraled out of control pretty quickly with some pretty nasty accusations being made.  The court was at such a loss trying to sort things out that the boys were in foster care for months.

    Before all was said and done, the case dragged on for months, there were 9 attorneys involved and thousands of dollars spent on litigation and to this day, we still don’t know for sure what the Barbers preference would have been.

  • Should my minor child’s guardian be the same person as my child’s trustee?

    This is a common area of discussion and there are a couple of schools of thought on the subject.  Neither one is necessarily right or wrong.  Instead, as a parent, you need to take into account the various factors and your family members.

    In choosing guardians, the number one factor you should be considering is who is the best person to love and raise your child?  But while that person might be great with children, he or she might not be great with money, so it might make sense to place that responsibility with someone else that is better suited.

    Similarly, it can be prudent to separate the responsibilities.  This can create some checks and balances and ensure that guardians do not abuse their responsibility by having too much control and access over the assets as well.  Furthermore, there may be many times when the trustee might be making financial decisions for the benefit of the child that also benefits the guardian, so there is a conflict of interest. 

    For example, what if your guardian already has children and needs a larger vehicle or to add on to their home?  What about family vacations or a new computer or sending your child to summer camp?  While it can be argued that these transactions would be for the benefit of your child, the guardian would also be benefiting from them. 

    Thus, it may make sense to separate the responsibility of raising the children from the responsibility to manage their finances, or at the very least, consider naming a co-trustee to work alongside the guardian. 

  • Is the court required to follow my appointment of guardian?

    Technically, no.  This surprises many parents—what’s the point of making guardian nominations of the court is not required to follow them?  Ultimately, the courts job is to determine what is in the best interests of the child.  This means that in almost all cases, the judge will defer to your guardian nomination assuming that you knew and understood what was in the best interests of the child.  But, the law does give the judge discretion to override your nomination if he or she feels that the guardian you selected is unfit to serve as guardian.

    While at first this might frustrate you as a parent, the reality is that it’s meant to protect your child.  Let’s say, for example, that you nominated a sister to be the potential guardian of your children.  At the time you made the nomination, she was married, had a great job and was a great role model for your child.  Now a few years have passed and you are in a car accident and never updated your guardian nominations.  In the years since you chose your sister as guardian, she has lost her job, her marriage fell apart and she developed a severe alcohol problem.  If that were the case, wouldn’t you want your judge to have the discretion to override your guardian nomination?

  • If my child’s other parent and I are not together, how does that impact guardianship?

    Ideally, you should talk to your child’s other parent about the importance of naming guardians, and if possible, attempt to come to an agreement about who should raise your child if something happens to both of you. But what if you don’t feel your child’s other parent is fit to raise your child? The fact is, the child’s other parent will usually have first opportunity to be the child’s guardian if you are gone. Typically, the courts will only deprive a parent of his or her parental rights in extreme situations. However, if you have concerns about that other parent’s ability to do that, then consider writing a detailed letter explaining why you feel that the other parent is unfit to raise your child. At least your concerns will be raised to the judge who will make the final decision of selecting a guardian for your child. Bottom line, name who you want to have as guardian for your child, even if it’s not the other parent.

  • What should I do if there is a certain family member that I do not want trying to get custody of our children (and their money)?

    You can’t choose your family.  If there is someone that you know you would never want raising your children, then we can help you clearly document then using a confidential exclusion of guardians.  The person doesn’t have to know today that they’ve been excluded.  But if they ever do try to challenge your guardian nominations, it’s one more tool in the arsenal that we can bring forward to a judge to clearly make your intentions known and why you felt the individual was not a suitable candidate to serve as guardian.

  • What is a Children’s Safeguard Plan?

    If you’ve been reading through our Frequently Asked Questions, you’ve probably gathered that there are a lot of common mistakes made by parents of young children when it comes to their estate planning.  It’s also been our experience that most estate plans don’t really adequately address the unique concerns of young parents.  So we’ve assembled a collection of tools to fill in the gap.

    First, we make sure you don’t fall victim to some of the common mistakes that parents make when choosing guardians. 

    Second, we make sure we have nominated emergency guardians and authorized them to make medical decisions for your children in a time of crisis. 

    Third, we supplement this by providing you tools to leave some detailed guidance about how you would actually want your children raised—your parenting style, values, hopes and dreams for your children.

    Finally, there are a couple of additional tools that round things out such as guidance on creating a family emergency plan.