Assuming You Have A Valid Will
Who Do You Want To Manage Your Estate?
Who Will be Guardian of Your Children?
Who Will Manage the Estate Assets?
Having a valid Maryland will puts you one step closer to ensuring security for your family and loved ones.
Appointing Guardians: Selecting guardians is an important undertaking. Recognize you and your spouse are no longer living and, therefore, you are entrusting another to act on your behalves with regard to your children. You are not just providing someone to have day-to-day supervision of a child or children but someone who will be planning and making major decisions with regard to your children. Often an individual will designate his or her parents as guardians of his or her child/children. However, if your parents are older or have medical issues, will your parents be able to cope with raising young children or teenagers? A reasonable approach to this kind of issue is to designate successor guardians. You can designate more than one successor guardian.
Also, you should discuss the role of a guardian with the person you anticipate designating as guardian or successor guardian in your will before you make that designation so that he/she/they understand the responsibilities. Even though you have designated in your will who the guardian or successor guardian is to be, the Court will, through a court proceeding, determine if your designated guardian is a fit and proper person to be the guardian and whether or not it is the best interests of the orphaned child/children to have your designated individual serve as guardian. For example, if, in your will, you designate your brother to be guardian of your children and in year one following your death, your brother is in a serious automobile accident and is therefore physically unable to fulfill his duties, a court could designate the successor guardian whom you named in your will as a temporary guardian. When your brother’s injuries have resolved, the Court may then appoint him on a long-term basis as guardian. However, if your brother develops an addiction to drugs during his treatment for his accident, then he is unlikely to ever be reappointed by the Court as guardian once his physical injuries have resolved. Your designated successor guardian, in that situation, would remain as guardian of the children on a permanent basis. It is also important to designate a successor guardian in your will to serve in the event the appointed guardian is unwilling to continue fulfilling his/her responsibilities or dies before the children reach majority.
Housing also may be a practical consideration when choosing a guardian for your minor children. You appoint your close friends or neighbors to be guardians of your twin children. Your neighbor has a four-bedroom house and three children. When we draw up your will, a testamentary trust is made part of your will and there are sufficient assets placed in the trust to meet short and long-term needs of your orphaned children. You also designate a trustee to gather and manage your trust assets. Our will and trust documents permit the trustee to resolve the housing need in the event of there being an insufficient number of bedrooms in the home of the guardian. One option would be to add a wing to the guardian’s home or to assist the guardians in the purchase a larger home.
Trustees: In addition to the designation of guardian of your children and the designation of the personal representative (sometimes referred to as the “executor” or “executrix”), who is the person who probates your will, the role of trustee is very important. This individual or an individual jointly with an institution, a bank, or other financial entity, manages all trust assets and makes all or most financial decisions that affect the trust beneficiaries, including but not limited to children, elderly parents, and physically and/or mentally challenged persons or other persons whom you wish to provide a large sum of assets. You may want to delay the amounts in serial payments and delay distribution to a scheduled period of time. The trustee has the authority to provide for your children’s and other trust beneficiaries’ health, education, and welfare.
Investments: The trustee is held to a high standard of care and must invest conservatively. A trustee could not purchase speculative stocks or invest in a business, except in appropriate circumstances to preserve a highly successful family business. In that situation, the trustee must use caution and communicate with the beneficiaries and possibly obtain approval of the Court to use trust assets to invest in a family business. If the trustee directs assets to speculative investments or makes loans that are not considered appropriate, he or she could be determined to have fallen short of the high financial standards and may be sued by the beneficiaries.
The above is only a brief description of the roles and responsibilities of guardians and trustees.
Fred Antenberg has practiced law for over 30 years and has prepared substantial numbers of wills including testamentary trusts, Intervivos trusts, and powers of attorney and has probated estates in Howard County, Carroll County, Baltimore County and Baltimore City.
Call Fred today at 410-730-4404 for a Free Initial Consultation.