When we had our first son, my ex-husband and I were vaguely aware that we should name a guardian for our baby if something happened to us. But in the weeks and months following his birth, I was too busy learning to be a mother to worry about a legal document. At the time, too, my son and I were attached…at the breast. There was no way he was going to be out of my sight for any length of time, I reasoned, and if something happened to me, it would happen to him too and, well, we’d both be gone.
It wasn’t until our son was nearing three years old and in pre-school a couple of hours a week, and a new baby was in my arms, that I felt a more pressing need to make sure he was cared for if I weren’t there. At the time, my ex-husband began to feel worried that, if he died before me, his hard-earned and lavish lifestyle would pass to me and if I survived him, to my heirs or even a new spouse or, heaven forbid, my siblings. He wasn’t far off the mark. All of that could have happened.
My First Estate Plan: A Lesson in How Not to Engage an Attorney
A brother-in-law referred us to his brother-in-law, an attorney, to do an estate plan. Lo and behold, the attorney had never done estate planning before, having been a transactional lawyer for years. He said he’d charge us a reduced “friends and family” rate while he learned how to do estate planning. We thought this was as good an idea as any and gave him the go ahead. We even asked him to help us figure out what we could do to protect our assets if my ex-husband were ever sued.
Six thousand dollars and three months later, the lawyer gave us a trust agreement in an envelope and said, “Congratulations, here’s your trust and your wills,” and off he went, check in hand.
He never explained what exactly a trust is, how it works, what we needed to do to make sure it worked. The trust itself didn’t provide for our kids in a responsible way, it merely gave our assets to them outright at 25, which is almost what dying without a will would have done. He didn’t coach us or guide us on making sure the trust was funded properly and our assets titled properly. And worse, he gave us a tongue-lashing for even asking about how we might protect our assets against future creditors or lawsuits. He claimed that such thing would be a “fraudulent transfer” and that he would have nothing to do with it and would drop us as clients if we continued to ask about it. I found out much later as an attorney myself that assets can be and are legally and ethically protected from future, unknown creditors.
The cherry on the cake? There were NO provisions for protecting our children from being taken from our home if something happened to both of us…no nomination of guardianship, no temporary guardians. Nothing.
That was our first experience with estate planning.
Our second experience was very different.
My Second Estate Plan: A Lesson In Stopping Short of the Goal
My dear friend Alexis Martin Neely had been in practice for a year or so and suggested I attend one of her legal planning seminars. I finally squeezed a few hours out of my mommy schedule to go and I was stunned by the amount of information she shared and how much of it had not been accounted for in the estate plan we had done just a couple of years before.
In her seminar, she described what exactly a trust is, why a trust is a superior tool for estate planning for families with kids, how to make sure kids are absolutely and totally protected from uncertainty and from being placed in foster care. My ex-husband and I immediately engaged her to do a new estate plan for us. I was deeply impressed with the level of care she took in handling us as clients, how often her and her staff were in contact with us, how precise she was in making sure the trust passed on our assets in a responsible way to our kids. And she was able to describe to us how we could protect our assets from future, unknown creditors and our kids’ inheritance from their future creditors.
Alexis created a comprehensive, beautifully drafted trust-based plan with a kids’ protection plan built right into it. Problem was…I never funded the trust she created.
It was my responsibility; I’d accepted it. I’d even told Alexis the she needn’t follow up on it because I could handle it. But I knew deep down that I wasn’t going to stay married and I didn’t have the heart to fund it, believing that it would be have to be disassembled in the not too distant future. No assets were ever transferred into our trust and so if something had happened to my ex-husband and I, my children would have been involved in lengthy, and costly, court proceedings and would have received their inheritance at 18. If I knew then what I know now, I would have funded it anyway and dissolved it later. But I didn’t know, and I didn’t fund it.
My ex-husband and I divorced shortly after I was accepted into law school. The documents I knew I must have in place were my children’s nominations of guardianship. Those documents remained in effect. My other estate planning documents had been gutted by my divorce by operation of law, and my children would receive my assets unprotected and outright at 18 if something happened to me.
When I became a lawyer, I made the decision to open my own firm, focusing entirely on legal planning for families—in part because my own experience, and that of friends and family, showed me how vital legal planning is. And how fragile life is.
My Third Estate Plan: A Lesson In Taking Charge
The first plan I created, of course, was my own. Only this time, I was planning not just for my children, but also for my blended family. After my third experience with estate planning, I have a plan that will work, that will accomplish what I want it to. It will provide for my kids and get them through college. It will help my ex-husband manage without me. It will give my future-husband some security and a place to call home. I’ve created journals, photo albums, and set my life story and lessons down on paper for my children to hold on to if something were to happen to me. My kids will have my voice digitally recorded, telling them stories of their ancestry, their upbringing, and my hopes for their future and the future of our world. They will not have to wish upon wishes that they could hear me one last time. They will have it forever, because I have made a conscious decision to give them that gift.
All this time, I have been fortunate to not have tragedy visited upon my children or me. I’m blessed and hope that my plan will never be needed. My children will grow up and not need the kind of protection they now need. I will grow old and gray with my new husband by my side. When I die, hopefully, it will be a blessing and a good death.
And yet, I can step off the curb each and every day and know if I’m hit by a bus, my family will go on, no…thrive…without me. I can live fully and teach my children to do the same, showing by example that a life well-lived is one lived without regret, with adventure in mind, faced courageously and consciously, taking good care of our loved ones and ourselves. My estate planning is done, for now. But it’s a living, breathing plan. I will revisit it every year or so to make sure it reflects my family’s needs and the changes in the law. I will not leave this earth with regret on my heart for not doing the very best I can for myself and the beautiful souls placed in my care.
Because that’s the kind of parent I want to be.
Now, I help other parents make decisions about how to care for their families if something happens to them. I help them plan for the worst so they can live their best. And that makes me very happy.
When you’re ready jump headlong into this very important part of your parenting responsibilities, I would be honored to be your guide. Please call 303-747-3909 to schedule a Family Wealth Planning Session with me. For families who meet with me before the end of the year, I will provide a complementary, comprehensive Kids’ Protection Plan for free—and you will get the peace of mind knowing your kids are protected from spending even one minute outside your home. Or, if you’d like to name permanent guardians for free as an initial step, you can do so at www.coloradokidsprotection.com. Either way, take the first, most vital step toward protecting your loved ones.
Happy Holidays!
A later-in-life attorney, Martha Hartney opened the practice in 2010 to serve the people she loves because she is committed to helping moms and dads bring their greatest gifts into parenting fearlessly and with joy and making sure children are completely cared for if something happens to their parents.
