Should your Children have an Estate Plan

Occasionally, during an Estate Planning conference with clients, this question comes up.  As an Estate Planning lawyer, I should probably be more pro-active about suggesting this topic.  As a professional, however, I always feel some discomfort about coming across as just “selling” services or forms.  So, I tend to soft-peddle the selling aspect of my job, and try to focus on the needs of the client.

It is a question that should be addressed in every client relationship

But it is a good question, and one that at some point should be addressed in every client relationship.  Most of my clients have children.  Many of them are yet living at home, or are in school somewhere.  These are the children my question addresses.  Once emancipated, I think the question is an unequivocal yes.  But for children still “living at home,” whether an estate plan is appropriate is dependent on the circumstances.

As long as children are minors, the parent is generally still their legal guardian, and can make most legal and health decisions for them.  However, it often comes as a surprise to parents who are still “footing the bill” for everything for their children, that they no longer have legal rights to many important areas once their child has reached the age of majority (18 in Michigan and in most states).  And more surprisingly to some parents, in some states, their legal rights may be somewhat limited at an earlier age.

The concern here is not usually any kind of adversary relationship with parent and child.  The concern is that third parties will (and in most cases are legally required) to honor the privacy rights of children.  This means that it can be very difficult in some instances to get information, speak to people on behalf of your children, and generally remain “in the loop.”

it often comes as a surprise to parents who are still “footing the bill” for everything for their children, that they no longer have legal rights to many important areas

Particularly when they were away at college, we had our children execute Durable Powers of Attorney and Health Care Designations of Patient Advocate.  There were a number of instances during those times when those documents came in very handy – both for us and for our children.

In some instances, we have also created Trust Agreements for children who have accumulated some financial wealth.  In most cases, this wealth would be either turned back to the parent, or distributed among siblings.

As a general matter, I believe the answer to the question will often be yes, and that the question should almost always be asked as part of the Estate Planning Process.

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