Taking Care of Your Will

We can all learn a lesson from the death of Michael Jackson. Having a will avoids a lot of confusion. On Good Morning Maryland @ 9, will and estate planning expert Yale Ginsburg walked our viewers through the process of creating a will.

A. Assuming no parent is living, guardianship of minor child is determined by Maryland statute.

1. No preference for grandparents, family members.
2. Anyone can petition for guardianship.
3. Court has final approval of appointing a guardian.
B. If a parent is living, parent will be normally be designated as guardian.
1. Maryland case law states that there is a constitutional right of a fit, legal parent to take custody of her child.

2. Non-parent must demonstrate “exceptional circumstances” to try to change custody.
a. Length of time child has been away from biological parent.
b. Age of child when care was assumed by third party.
c. Possible emotional effect on child of a change of custody.
d. Period of time which elapsed before parent sought to reclaim child.
e. Nature and strength of ties between child and third-party custodian.
f. Intensity and genuineness of the parent’s desire to have the child.
g. Stability and certainty as to the child’s future in the custody of the parent.
h. Very high burden of proof.

3. Non-parent must demonstrate that parent is “unfit.”
a. Abandonment of child.
b. Physical or mental abuse of child (or of other children).
c. Very high burden of proof.

C. Guardian of the person vs. guardian of the property.

1. Court may choose different people.
2. Can pay for “clothing, support, care, protection, welfare and education.”
May be further limited by Court.
3. Guardianship terminates upon minor attaining age 18.

II. What Happens To Your Kids If You Die In Debt?
A. Unsecured Debt – credit card, medical bill.
1. Creditor can only look to probate assets of estate to get paid.
2. If debt exceeds estate assets, creditor is out of luck.
B. Secured Debt – home mortgage, car loan.
1. Debt follows the asset.
2. If debt exceeds the asset, creditor can look to other estate assets for payment.