arakaky headshotBy Christopher M. Arakaky

Arakaky is an associate in the Leesburg Office at Dunlap Bennett & Ludwig.

[03.02.2020 Leesburg]  You’ve worked hard for many years to provide for your family and to build your estate. You know how critical it is that your estate planning documents are prepared correctly so you can pass on what you own to your loved ones without a glitch. When you have adult children, there may be ways to reduce your probate estate via transfer-on-death designations on many assets. These designations help reduce the stress that generally accompanies planning your estate. However, when you have minor children, there are some very important issues and considerations you will want to think through.

Will vs. Living Trust: It’s true that all people, regardless of their estate, should consider whether a will or a living trust makes the most sense. This issue is heightened when you have minor children. Why? That’s because minors cannot outright control their inherited property,  so you should not be designating them as beneficiaries on your assets to avoid probate. It would be more advisable to pass the property on to them through a will or a living trust. If you only have a will in place and you and your spouse pass away before your children turn 18, your estate may not be immediately available to help care for them. The executor will first have to be appointed by the court and pay off debts/taxes/expenses with court oversight. The delay could be a strain on the guardians of your children, which is made even worse when you consider the emotional trauma of losing one or both parents. Your executor will also be forced to make a very time-sensitive inventory and accounting filings. A living trust would be a great option to avoid this scenario.

Testamentary Trust: Even if you decide to go with a will, you should still strongly consider creating a testamentary trust. This is a trust that is created and funded through the probate process, rather than during your lifetime. If you and your spouse pass away before your children turn 18 years old, then a court can appoint a guardian over the estate of your children. A court will closely monitor the guardian over the estate and expect them to make yearly filings and accountings of the child’s estate until the child reaches 18. Setting up a testamentary trust will allow the trustee to handle the child’s estate instead. The trustee would have the discretion to use the trust funds for the health, education, maintenance, and support of the child until he or she reaches the age they are to receive their inheritance outright. This age could be 18, but it need not be. It could be 21, 25, 30, or even older. It can also be done in installments at different ages (e.g. half at 21 and a half at 30).

Guardian and Trustee: If you have minor children, you will have to name a guardian in your will in case you and your spouse are not around to raise your child. However, that person is not necessarily the same person designated to act as the trustee of the living or testamentary trust. Naming the same person to act as guardian and trustee can definitely cut down on administration difficulties. However, designating separate individuals for each role has the benefit of checks and balances. It protects the funds in the trust from being misused by the guardian. The trustee can veto the distribution if they feel it isn’t necessary for the child’s health, education, maintenance, and support.

When you have minor children, your estate planning must take into account these considerations so you can make the best choice for your family. There may be additional factors to consider as well, such as if your child has a disability and is likely to need Medicaid benefits in the future. Discussions with your attorneys should be holistic and take all relevant factors into account. The estate planning attorneys at Dunlap Bennett & Ludwig can assist you in navigating through the estate planning waters and avoid pitfalls for you and your family.

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Posted in: Estate Planning

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