Nowadays, it’s easy to customize everything from apparel to coffee mugs and water bottles. But, as we well know at Geyer Legal, one area that simply cannot be customized is estate planning. Every individual, every parent and grandparent with whom we meet, represents a unique set of circumstances and a unique set of wishes, and many have “nontraditional” needs. There are unmarried partners, same sex spouses, children with special needs and those in foster care. While our mantra is “life is a journey that starts and ends with family,” one lesson we’ve learned over the past quarter century is that family situations are fluid. As Indiana estate planning attorneys, we know life’s twists and turns often make it necessary to change one’s mind and one’s documents.
A foster child may have come into one of your adult children’s lives through the court system or through an agency. However it begins, as the National Council for Adoption points out, foster children typically retain their legal inheritance rights from their biological parents as the foster care arrangement does not sever those legal ties. In fact, reunification with natural parents is the primary goal when any child is placed in foster care.
Under Indiana law, grandparents must explicitly name a foster grandchild in their will or trust because foster children have no automatic legal right to inherit under state intestate succession rules unless that foster child is legally adopted by his or her foster parents. For grandparents, using broad phrasing like “to all my grandchildren” in a will may fail to legally cover a foster grandchild unless adoption has finalized.
For grandparents who feel the foster care situation is likely to lead to adoption and who would like to include a foster grandchild in their estate plan, they should:
- Modify the documents (will and/or trust) to explicitly identify the foster child by full legal name and date of birth.
- Clearly state the intention to provide for the individual as if they were a grandchild.
- If adding a foster grandchild as beneficiary of life insurance or of a retirement account, specifically and individually identify them.
When a young person in foster care turns 18, they become an adult and are “emancipated” or “aged out” of the system (the Indiana Department of Child Services Older Youth Initiatives program helps youth by identifying community resources and services to help them transition.)
From an estate planning viewpoint, this is a signal for foster grandparents to re-evaluate their own choices as related to a now adult foster grandchild.
Welcoming a foster grandchild, then watching the story unfold, requires customized estate planning.
– by Rebecca W. Geyer
