Have you run out of good shows to binge watch during these long winter months in Covid Time? If you haven’t seen it yet, I highly recommend the Netflix series Dead to Me. Not only is Christina Applegate the lead character (who is not a fan?) and the series is just as funny as it is suspenseful (we could all use some laughs right now), but also you can learn some important lessons about estate planning (and justify TV binging as educational!).
Here’s the background: Jen Harding (Christina Applegate) becomes a widow when her husband, Ted, is killed by a hit-and-run driver while jogging solo one evening. Shocked and saddened, Jen finds herself alone with her two children, both of whom are under age 18. As she begins to confront the reality of her situation, she asks an essential estate planning question: If I pass away while the kids are minors, who will take care of them now that my spouse, Ted, is gone?
The story takes place in California, but here’s how it would play out under Massachusetts law: A living parent is the legal guardian of his or her children while the children are under age 18. Once a child turns 18 and becomes a legal adult, the parent (with a few exceptions) is no longer responsible for the child, financially or otherwise.
When a child has no living parents, a guardian must be appointed by a Judge of the Probate Court. All parents should write a will in order to name a guardian for their children; otherwise, should they die, a Judge will make that decision without knowing whom the parents would have considered.
Why Naming a Guardian in Your Will Matters
What do guardians do? A guardian steps into the parents’ shoes and makes all decisions on the children’s behalf: Will they change schools? Where will they live? Will they attend religious services? What outfits are they wearing on major holidays? Which doctor will they see?
Massachusetts law goes even further, by recognizing that a good guardian who will take great care of the kids may not be great with managing their finances. Since 2012, Massachusetts law permits parents to name a “conservator”— someone who will manage the children’s financial situation until age 18 who is not necessarily the guardian. Parents may choose one person to serve both roles of guardian and conservator, but there is no requirement to do so.
So, back to Dead to Me: If one parent dies, then the living parent remains the child’s legal guardian by operation of law. Jen’s husband, Ted, if he had a lawyer, would have left a will that identifies Jen as the sole guardian of the kids following his death. If such a lawyer were a good lawyer, the will would also provide a back-up guardian to replace Jen in case Jen is not living when Ted dies.
Choosing a Guardian or Conservator for Your Children Requires Good Legal Advice
But if Ted did not leave a will, then Jen should do so. She should name a guardian (and perhaps a conservator) to take care of her children in case of her death. In the series, Jen struggles with this issue and attempts to draft her own will on the Internet.
While I appreciate Jen’s thinking about this crucial estate planning issue, I would never recommend using an online platform unless you are an estate planning lawyer (or married to one!). Wisely choosing a guardian/conservator as part of the overall estate plan requires serious thought and legal counseling —something the Internet will not be able to provide. Any online so-called legal advice is likely to be incomplete, at best.
So, all you parents of minor children, please make a 2021 New Year’s resolution. Even if you do nothing else with estate planning, please make a will to name guardians/conservators for your children. If we’ve learned anything this difficult year, it’s that life is unpredictable. We hope you’ll never find yourself in Jen’s situation, but it’s best to be certain that your children will always be in good hands.
If you have any questions or need guidance on your estate plan, please contact me at firstname.lastname@example.org or (508)453-6276.
Your lawyers at Mountain Dearborn wish you a safe and healthy New Year!
Image: Ralf Skirr