Estate Planning for Children: 2 Must-Have Provisions

Certified as an elder law attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court

Certified as an elder law attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court

Despite our “elder law” moniker, we frequently write estate plans people of all ages.

When I see parents whose children are minors, I make sure to address two specific issues that are usually not important with elderly clients. If you parent minor children, make sure your will addresses these issues too.

Nominate a guardian. Who will raise your children if you’re not there? If you’re single, your death takes away the only caregiver. If you’re married, it’s possible you and your spouse could perish in a common accident.

State laws provide a procedure for naming a legal guardian in such a case. In Pennsylvania, an Orphans’ Court judge has the authority to appoint a guardian. Judges give great weight to a nomination contained in a parent’s will.

So your last will and testament should contain a clause nominating a guardian to raise your children if you’re deceased.

Appoint a trustee. Most parents leave life insurance proceeds or some other financial assets to benefit their children in the event of the parent’s death. But who will manage the money?

You should appoint a trustee to manage the money until your children are older.

There are a number of important related issues you will need to discuss with your attorney in order for your will to suit your particular situation. For example:

  • Should the trustee be a person, or a corporate trustee like a bank or trust company?
  • If the trustee is a person, is it the same person as the guardian or should it be someone different?
  • How old should your children be before they receive the funds held by the trustee – 18, 25, 32, 45?
  • What can the trustee spend trust money on, and with how much discretion?

These are just a few of the many questions you should discuss with experienced legal counsel in order to get the details right.

For that matter, you will need other will provisions and other important documents to make up a complete and effective estate plan. But if you have small children, make sure you have the trustee and guardian issues covered.

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