Whether you’re a parent of teens, or have recently welcomed a new baby into your life, chances are you’ve asked yourself this question:
What happens to my kids if I die?
Whether you’re a single parent of teens, or have recently welcomed a new baby into your life, chances are you’ve asked this question: What happens if I die?
Have you done everything possible to care for your children in the future?
Creating an estate plan is one of the best ways to provide for your children.
We asked single moms on Facebook to share their thoughts on creating an estate plan, and responses ranged from fear to empowerment:
“I have lots of fears and anxiety, because I have nothing in place.”
“If you own a home, make sure you file the homestead protection papers for your state (or that your realtor did). Put as much as you can in your 401k at least to get full benefit of employer matching, 401k as well as homestead offer protections against creditors. Work: your social security benefits are also protected. When you are choosing when to borrow: Federal student loans are forgivable upon either the borrower’s or student’s death or disability (unlike mortgages, car loans etc). I got a living trust and put my real property in its name. I did it when my ex died. One of my best friends has the docs and can help out (is a named Trustee). I also have a law firm engaged to help administer should something happen to me.”
“I stress because I haven't done it yet. I meant to this year, but we've had so much going on. My dad died, I bought a house, my child was diagnosed with a chronic illness, it just feels too overwhelming at the moment.”
“Part of my journey as a SMC meant stipulating my assets via her trustees when she was born. It gave me piece of mind lining up all her key players, getting consent and having those important conversations while I was pregnant. But this is just my experience.”
Whether you have an estate plan in place and want to fine tune the details or you’re just getting started, this post offers education and guidance to make sure that your wishes are honored, and decisions about your children’s future are not left up to the courts.
This post will answer the following questions to help you get an enforceable estate plan in place:
- What is estate planning?
- What documents are essential for an estate plan?
- Do I need an estate planning attorney?
- What is a will?
- What should a single parent include in a will?
- Do I need a lawyer to make a will?
- What is a living trust?
- What does a single parent living trust include?
- What is an advanced directive?
- What is the best trust for a single parent?
- What happens when one parent dies?
- What happens when both parents die?
- How do I set up a guardianship in case of death?
What is estate planning?
Estate planning is the legal process of transferring your wealth after death. However, an estate plan can also include a living will to carry out your wishes if you are no longer able to make decisions or give consent.
“A good estate plan covers it all — from now through incapacity and all the way through death,” says Attorney Candace Dellacona, a shareholder and Practice Group Leader of the Estates and Trusts practice group (North) at Offit Kurman in New York. She is also the host of The Sandwich Generation Survival Guide, a podcast that covers topics like estate planning, self-care, raising children, and caregiving for aging parents.1
Estate planning can cover how to handle:
- Life insurance and beneficiaries
- Care for minor children or dependents
- Setting up a trust
- Philanthropic acts
- Real estate
- Items of sentimental and monetary value
Estate planning can also include strategies for minimizing the sum of taxes your heirs will pay on any inheritance.
What documents are essential for estate planning?
Essential parts of an estate plan include:
- Advanced directive: Establishes legal responsibility for decision-making in terms of your health and finances
- Will: Spells out what happens to your property when you die
- Living will: A type of advance directive that carries out your wishes if you become incapacitated and unable to make decisions
- Trust: A legal entity into which property or funds are transferred, and then managed
- Living trust: A legal entity that holds and manages your property or funds while you are alive and distributes them after death
You might be familiar with a will or a trust but have you heard of an advanced directive? They are another key part of a complete estate plan.
“Everyone needs advanced directives, which are the documents that cover your health care wishes in the event that you’re alive but unable to speak for yourself,” she says, adding that, in many states, an advanced directive can also be called a health care proxy or a power of attorney for health care.
“A second advanced directive is a power of attorney for finances,” Dellacona says. “This document is vital in the event that you’re alive but unable to handle your finances due to illness or incapacity.”
Dellacona explains that, to direct your assets upon your death, a will or a trust is required. These documents state who is in charge of your assets when you die and who should inherit those assets.
Do I need an estate planning attorney?
Yes, an estate planning attorney can be a great resource for several reasons:
- They know state laws concerning estate plans
- They can help you choose what’s right for you and your family
- They can ensure that your estate plan is valid and enforceable
“While there are some ‘DIY' options online, you’ll never get the context/importance of each document and how important the details are without someone to guide you,” Dellacona says. “I often tell people that a DIY estate plan is much like looking at WebMD to diagnose a serious illness — it just shouldn’t be done.”
If you still plan to create your own plan or if you have already created one using online forms, it is advisable to have an attorney review your estate plan to make sure it will be enforceable in your state.
What is a will?
A will, short for last will and testament, is a legal document that:
- Details how you want your property to be distributed when you die
- Appoints an executor to carry out those wishes
- Includes a provision that outlines how your estate will care for minor children or dependents and names a preferred guardian
A will controls your assets that don’t have instruction on where to go when you die. For example, Dellacona says, a bank account with a named beneficiary or a jointly-owned home cannot supersede a will.
In the case of the beneficiary, that person becomes the owner of the account upon your death. And if you jointly own property, the co-owner has rights of survivorship, meaning that the will can’t control who gets the house because it already has an owner.
What should a single parent will include?
A will defines the handling of assets and debts, but as a single parent, your will must cover how your children will be cared for and by whom.
“A single parent’s estate plan is vital, especially when it comes to guardianship,” Dellacona says. “It is so important that you name a guardian for your minor child (who may or may not be their other parent) and perhaps a trustee for the funds that you leave to your child.”
According to Dellacona, a single parent will should include:
- Naming someone you trust as executor who will carry out the terms of your will (also name a successor executor in case the original successor is not available)
- A statement that addresses how the estate is to be distributed after identified debts, expenses, and taxes are paid
- Language that defines who gets what (if you haven’t already named beneficiaries or established joint ownership on assets such as real estate, vehicles, bank accounts, life insurance, and personal belongings (Don’t have life insurance yet? Read: Where single parents can find the best, affordable life insurance in 2023)
- Specifics about how you want your assets to be allocated to care for your children
- Naming a person as a guardian to take care of your kids if you and the other parent pass away or if the children’s other parent is not part of their lives.
- Naming alternative guardians in the event your first choice for legal guardian is unwilling or unable to care for your child
- Creating a pet trust to make sure your family pet is taken care of and naming a guardian to care for them after you’re gone (you can add a pet trust to a will or living trust)
As far as allocating assets to your children, Dellacona says you can ask your estate planning attorney to set up a trust in your will called a testamentary trust, or you can do this in your own revocable trust to direct how the funds should be distributed to your children.
Do you need a lawyer to make a will?
It helps to have an attorney guide the process because it ensures that you will have an enforceable will. If you don’t have many assets or debts, you can also use a reputable online legal service to get the job done.
However, if you have multiple children, a large estate that includes property, or challenging family dynamics, an attorney’s expertise will be essential in the estate planning process.
Dellacona says you should proceed with caution when using an online legal service.
“Laws differ greatly from state to state, and most states have stringent signing requirements,” Dellacona says. “If you do not follow the strict protocol, your will may not be valid. Estate planning is so important – it protects your family after all, and it is best left to a professional.”
Should you decide to use an online legal service, Find out if they also offer a service to have an estate planning attorney review your will to ensure it is executed properly.
For example, LegalZoom offers a will and estate planning package that also includes two weeks of attorney help and a full review of the will or complete estate plan to ensure everything is correct.2
Searching for “will lawyer near me?” Enter your zip code here:
What is a trust?
A trust is a legal arrangement that gives a third party, known as a trustee, the authority to hold assets on behalf of a beneficiary or a group of beneficiaries.
Dellacona says that a trust can also be a substitute for a will because it takes the place of a will and avoids probate. For this reason, it can be a great option.
“A trust must be funded with your assets before you die,” Dellacona says. “When you create a trust that directs where you want your assets to go upon your passing, you first have to re-title those assets in the name of the trust before you die.”
The main benefit of a trust, Dellacona says, is that it doesn’t have to go through probate upon death so it generally means that an estate is administered much quicker if the assets are in a trust.
Trusts can be revocable (you can change the details) or irrevocable (cannot be changed).
What is a living trust?
A living trust is a written legal document that places your assets in a trust for the purpose of managing them during your life and distributing them after you pass on.
What’s the main advantage of a trust or living trust?
The main advantage of a trust is being able to quickly and efficiently distribute your assets and personal possessions after you die without going through probate court.
What’s the difference between a will and a living trust?
A living trust:
- Manages your assets during your life
- Distributes your assets upon your death
- Doesn't have to go through probate court
- Is complex to set up, requires an attorney, and can be expensive
- Does not help your heirs avoid probate court
- Can be declared invalid by a court
- Can be challenged
- Is one of the most affordable estate plan documents
While probate court mainly exists to ensure your debts are paid and your assets are distributed fairly, there are a few things that can go wrong.
For example, if your probate court decides your will is invalid, family members can appear in court and object to:
- Your will
- Your named executor
- How your assets will be distributed
This means your assets may or may not wind up where you wanted them to be.
Do you need a will or a living trust?
You need a will, first and foremost. It names all of your assets. A living trust goes hand in hand with a will and provides control of those assets and timely help for your children and any other beneficiaries you leave behind.
Remember, not having a trust means your will is subject to probate court. The probate court process can take a year or longer, depending on the state and circumstances.
But it will also depend on what you can afford. Depending on how you create it (DIY vs. estate planning attorney), a will can cost $0-$1,000 and a trust can cost $139-$3,000.3
What does a single parent living trust include?
According to Dellacona, a single parent living trust should contain:
- A will and/or a trust that contains a guardianship provision for your kids and a trust for your kids
- Durable power of attorney
- Health care proxy/health care power of attorney that contains a HIPAA waiver
Keep in mind, a will and a trust are two separate documents, even though they can work together to care for those left behind.
What is an advanced directive?
If you find yourself in a coma or unable to speak, your loved ones and the medical staff won’t know whether you want life support or to be resuscitated. Having an advanced directive can communicate your wishes and appoint someone to be your medical power of attorney to make decisions on your behalf.
What is an advanced directive vs. a living will? A living will is a type of advanced directive that describes the types of health care you want to receive if you can’t speak for yourself.
What is the best trust for a single parent?
Dellacona says choosing the best trust will depend on what you need.
“Often a revocable trust can be sufficient to manage assets during your life and then pass to your children in further trust upon your death,” she says. “Irrevocable trusts can be a tool to keep assets out of your estate for tax purposes.”
Dellacona says that each client has a unique set of circumstances, which means it’s important to speak with an estate planning lawyer in your state to make sure that the advice you receive is accurate.
What happens when one parent dies?
When a parent dies, what happens to children depends on a few factors:
- Whether you’re married to the other parent
- The custody arrangements if you’re divorced or were never married to the other parent, and
- If you have a will
If the legal mother and father are married to each other, this question is easy to answer: When one parent passes on, the surviving parent gets custody.
But what if you’re not married—or were never married to your child’s father?
According to the U.S. Census Bureau, 23% of kids live with single parents.4 Where your children are placed should you die depends on your legal rights as a father or as a mother.
When thinking about what happens if you’re divorced and die without a will, these questions may come up:
- If a mother dies, does the father automatically get custody?
- If a father dies, does the mother automatically get custody?
If the other parent is at all involved in the child’s life, and there is a custody and visitation schedule in place, chances are good the child will live full-time with the surviving parent.
If the parent with sole custody dies, the court will decide whether to place your kids with the non-custodial parent based on what is best for the children.
Grandparents can get custody over the father or mother if one or the other isn’t safe or practical — say, if one parent is incarcerated, addicted, or has been largely absent from the child’s life. But the child is most often placed with the surviving parent when the custodial parent dies.
What happens when both parents die?
Having a situation where both parents depart this life at the same time is rare, but it’s a good example of why every parent needs to have a will. Otherwise, you have no say in who cares for your child because the decision rests with the court.
If this happens, the first thing you need to know is that child custody only applies to parents.
When another adult — such as a grandparent, friend, or another relative — is given the responsibility to care for your child through a will, custody no longer applies. Instead, the court will appoint them as the legal guardian of your child.
A legal guardian is someone appointed by the court with legal authority and responsibility to care for a child. This person may also be responsible for the child’s legal and financial affairs, but not necessarily.
In some cases, especially if there is a large sum of money from an inheritance or life insurance policy, a conservator is appointed by a judge to manage the financial affairs of a child. This person may also be the legal guardian, but can also be a second person.
How to set up guardianship in case of death
If the children are still minors when you pass, establishing guardianship can be done one of two ways — with or without a will.
Setting up a guardianship with a will
With a will, you’ll have the satisfaction of knowing the court will follow your wishes unless your request is impractical, or the person doesn’t want the responsibility of caring for your children.
Ideally, you can establish guardianship for your kids by working with the other parent and picking a person the two of you can agree on. This way, you both nominate the same person in your wills and the court can appoint a guardian with no trouble if you both die.
Whoever you chose to serve as guardian should have a copy of your will, and they can bring the document to the probate court when the time comes. Some states require the nominated guardian to fill out an application or petition before they’ll grant guardianship, and they’ll likely have to pay a filing fee, too.
Setting up guardianship without a will
When parents die without a will, the court can still appoint a guardian, although this isn’t the best situation since the courts won’t have any idea what your wishes are.
But someone needs to care for your kids, and the court should have legal guardianship forms available to fill out in case of your death.
In most jurisdictions, anyone with an interest in the minor’s care can fill out this form to request appointment as guardian, including a sibling if they’re at least 18 years old and can provide a stable home environment.
However, the courts will decide who gets guardianship of your minor children, and often look to grandparents, other relatives, or friends of the family to fill the role.
In the unfortunate event that a suitable person can’t be found, or if one isn’t willing to serve as guardian, foster care might be the only option and your child could end up as a ward of the state.
Bottom line: Should you have a will for a single parent as part of your estate planning? Yes, here’s why
If you die without leaving a will, your property and assets may not be divided according to your wishes, and your children’s guardianship could be left up to the courts.
Check out this video from Sarah Morris of Morris Law Center about why you should have an estate plan as a single parent:
As a single parent, you never want to imagine leaving your children behind, especially when they’re still young. But the reality is, bad things can and do happen. That’s why it’s crucial to ensure your children will be safely cared for and financially supported in the event of your passing.
- “The Sandwich Generation Survival Guide” podcast https://offitkurman.com/offit-kurman-podcast/the-sandwich-generation-survival-guide/
- “Protect your loved ones with a legally binding will” LegalZoom https://www.legalzoom.com/marketing/estate-planning/last-will
- “Living Trust vs. Will: Key Differences” National Council on Aging https://www.ncoa.org/adviser/estate-planning/living-trust-vs-will/
- “National Single Parent Day: March 21, 2023” United States Census Bureau https://www.census.gov/newsroom/stories/single-parent-day.html
If the legal mother and father are married to each other, this question is easy to answer: When one parent passes on, the surviving parent always gets custody. But what if you’re not married? Where your children are placed should you die depends on your legal rights as a father or as a mother.
Having a situation where both parents depart this life at the same time is rare, but it’s a good example of why every parent needs to have a will. Otherwise, you have no say in who cares for your child because the decision rests with the court. If this happens, the first thing you need to know is that child custody only applies to parents.
While making a will might feel overwhelming, it’s the most fundamental legal document for child custody if the parents die. Instead of leaving their well-being hanging in the balance, you’ll feel better knowing you helped choose who has custody of your kids if you pass away while they’re still young.