Appointing a Guardian
If you have children under the age of eighteen, you should seriously consider appointing a Guardian for those children in the case of your death. If you and your spouse die at the same time without such an appointment, a court will select a Guardian to care for your children and manage their inheritance until they become adults and this may not be someone to whom you want to entrust your children. The best place to appoint a Guardian for your children is in your will.
Having a will which appoints a Guardian after your death provides a smooth transition to a new care-giver and a new home. It permits the children and parents to choose where the children will live, and prevents the children from unnecessarily entering the foster care system and maybe even being split up. It provides the parents with peace of mind to know that, should something happen to them, their children will be well cared for.
Planning your children’s custody after death is something that should be carefully thought out. Who will raise your children in your absence and impart upon them the values which are important to you? Who will be willing or, in case your estate is minimal, financially able to do so? Careful consideration should be given to choosing a potential Guardian for your children.
You may appoint a single Guardian or joint Guardians to act at the same time. If you choose a single Guardian, it is often useful to indicate an alternate Guardian just in case the first Guardian chosen predeceases or is later unable or unwilling to act in that capacity. Before designating a Guardian or Guardians, be sure to confer with those individuals and discuss the matter to verify they are willing to act in that capacity.
While your Guardianship appointment is not strictly binding on the court, unless there is an appropriate legal challenge, the court will normally approve Guardian(s) as stated in a will provided there is not a surviving parent. If there is a surviving parent, that parent will have automatic Guardianship of the children.
Creating a Testamentary Trust and Designating a Trustee
If you have children under the age of majority or they will be beneficiaries under your will, you should consider creating a testamentary trust through your will to control the property which will be transferred to your children after your death. A testamentary trust is useful if you are concerned that the children may lack the maturity to handle their inheritance after age eighteen. If no such trust is created in your will and your beneficiaries are under the age of eighteen the inheritance will be held in trust until your children reach the age of eighteen at which time they will receive their inheritance.
While eighteen was probably once a reasonable age, there is a growing tendency to increase the specified age to receive an inheritance to between twenty-one and twenty-five. The majority of the time, most people would prefer closer to the age of twenty-five because this allows for your children to complete their schooling prior to full access to their inheritance.
When you create a testamentary trust for your children, you will need to appoint a Trustee. The Trustee controls the money you leave in trust for your minor children. Most often the Trustee is a relative or close friend who has similar values and standards to yours and may even be the Guardian you have appointed for the children.
When creating the trust, you should provide that the Trustee of your children’s inheritance is able to use the funds for the benefit of the heir(s), at the discretion of the Trustee, prior to their age of receiving the inheritance. This allows for providing living, educational, lifestyle or other expenses to be paid prior to the age required in the will. In fact, most clauses of this nature give an absolute discretion to the Trustee to even pay out all of the funds prior to the specified age, at the discretion of the Trustee.
Careful planning for your children’s futures after your death can ensure that your children will be well-cared for, raised with the proper values and provided for financially. If you don’t presently have a will which covers these issues, you should consider consulting with an attorney to address custody planning after your death.