Considerations Relating to Children in Estate Planning
Minor children factor heavily into considerations of estate planning with the last will and testament. This is particularly true in the context of distributing estate assets, but also the manner in which estate assets will be transferred to minor children. An estate plan which considers children must consider issues of guardianship in the event, a parent or parents die before children are old enough to manage a windfall inheritance responsibly.
Here, this article will look at estate planning considerations regarding minor biological children, and minor stepchildren.
Providing for the needs of minor children in the event both parents die, the physical custody of the children and the management of financial resources for the benefit of the children.
One of the most important functions of a will for those with minor children is to name a legal guardian or as it is also known a conservator for minor children in the event both parents die. A will should specify the conditions under which children should enter the care of another and who should act as the primary guardian. It should also designate an alternate guardian in the event the primary is unable to fulfill their duties
A second consideration arises when minor children stand to inherit from a parent’s estate. In this case, a will may include a testamentary trust or a trust contained in a will that provides for the distribution of all or part of an estate listing the minor child as a beneficiary. Without a testamentary trust, the probate court will appoint a guardian to manage the children’s financial affairs. From an estate planning perspective, this is a less than ideal scenario as financial planning for minor children could potentially be carried out in a way that is contrary to the parent’s wishes.
A common situation estate planners will encounter when a person either has additional children or marries an individual who brings his or her children into the marriage. In this case, it is important to consider. As a general rule stepchildren are not included in a will by law. Therefore, if a stepparent would like to include his or her stepchildren in their will, they should specifically mention the step children by name and make a clear bequest to them in the will. Language in a will leaving property to “my children” is considered by the courts to include only biological and adopted children.
Estate planning with children in mind brings forth unique considerations that if done properly will explicitly provide predictable and clear instructions for the children’s future and also plan for contingencies if needed.
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