Estate planning for special needs child with a reluctant spouse
My sister has a middle schooler with some special needs, and the good news is she has two close friends who are willing to raise her son jointly as his guardians. (FWIW, I'm not the guardian b/c a cross-country move from NY would be too disruptive for him and these friends have known her son all his life.) The rub is that her husband has been dragging his feet for years to do any estate planning and appoint guardians, even though he is apparently OK with the guardian plan and does not want his family to raise their son. I saw her recently and reiterated that they really need to get this done, and from her response, it doesn't sound as if she thinks much progress will be made. Is there anything she can do independently to build in some safeguards until her husband finally agrees to move forward? Can she do her own will without her husband to at least document her preference for guardians? Other ideas? Thank you BPN!
Parent Replies
Under California law parents need to nominate a guardian in a will. In the unlikely and tragic event that both parents die simultaneously, if one of them has nominated a guardian in a will, that choice will be respected. Your relative may just want to do her own will with guardian nomination, but should check out the law in New York state.
If the husband is on the same page as she is but just dragging his feet in terms of getting it documented, couldn't she make an appointment with an estate planning lawyer, get all the paperwork done, and then present the documents to him to sign? His signatures will need to be notarized but there are notaries who will come to your house, if that's what it takes. My husband was a pain about this process too - I think there are some people who feel like making a will is the first step towards death or if they don't make a will, they won't die.
It seems to me that guardians are only needed if both of the parents are dead. If she creates a will naming the friends as guardians and she and her husband die together, say in a car crash, and the husband doesn't have an estate plan, guardianship should follow whatever she specifies. Same goes if he predeceases her. The only problem come up if she predeceases him. I'm no lawyer and don't know what the courts would do in that case, but I suspect the estate plan of the wife would have some weight, even if she had died some years before.
Or she can just go to an estate lawyer, get everything written up, and ask him to sign. That's not ideal, and he could always balk at that point which would mean money wasted. But it sounds like there's general agreement and it's just the process he's dragging his feet on.
A trip to an estates attorney would be the way to go. Possibly you could be one of the trustees if she sets up a trust (which seems like a good idea but I am not a lawyer and she should check with a lawyer).