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Drafting Wills for Parents of Young Children

By Karen L Rowell, Esq.

It is important that every person have a Will that expresses their wishes and makes it easier on their loved ones to administer their estate, but there are some considerations for the parents of young children that make drafting wills absolutely essential.

One important function of a parent’s Will is to nominate a guardian for their child in the event that both parents are deceased, or in a situation where only one parent has legal custody. While most people assume that their family will take care of it, it is important to have a discussion about who would be an appropriate person to raise your children in such a terrible circumstance. Consider the person’s age, their level of responsibility, familiarity with children, location and most impfamilyortantly their willingness. It is not something that should be left to potentially several various family members to decide and to have to present in court without any evidence of your preference. By naming someone in your Will, the family is relieved of the burden of making such an important decision, it presents the opportunity to discuss the issue with the person you nominate, and it creates a record of your wishes and confidence in the person nominated.

Another concern is who will handle the assets inherited by your children, and under what conditions. Even a family of very modest assets may have a home, life insurance policies through their employer, a vehicle, and other items of which a minor cannot take ownership. Any person under the age of 18 inheriting property outright (as opposed to in trust, for example) must have a guardian of their estate appointed by the local circuit court. Any time that administrative burdens can be reduced and court expenses avoided, it is a good idea to so.

As mentioned, a trust provides an excellent alternative. Your Will can lay out the terms of a basic trust for anyone under the age of 18 (at a minimum, you can actually select any age 18 or older). This allows you to select a Trustee who receive the assets from the Executor of your estate to be held for the benefit of the children until they reach the required age. The Trustee can be the same person as the legal guardian you nominated, or it can be a different person who you feel more comfortable with handling finances. Also, having two different persons appointed in those roles avoids the potential for abuse of the funds, or the impression of such.

If you have multiple children at varying ages, you may be concerned that when the oldest turns 18, there will still be young children who need more support. A Trust can be set up to make distributions in any amount and based on the timing that you choose. A pooled trust is one solution often used by parents that keeps the assets all together for use as necessary without segregating shares, which is more representative of how a family functions, in case one child has more needs than another (health issues, needs braces, etc.) and then upon the youngest reaching a certain age the remainder is at that time split equally into the shares for each child to do with as they please. Flexibility can be added to this type of plan by allowing the Trustee, if the Trustee believes the funds are adequate, to make advancements against an older child=s eventual share for things like college, or business expenses, allowing for what the parent might have done to support all of the children through various periods of their life.

We can help address whatever unique concerns you may have about your family situation and find the solution that is right for you and your family.

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