Featuring Children in Your Estate Plan
If you have children, there are several considerations to address to take care of them in your estate plan. This blog post discusses guardianship, minors’ trusts, custodianship of assets, appointing your children to have decision-making roles in your documents, and family harmony considerations.
Guardianship
If you have children who are under 18 years old, you should appoint a legal guardian in your Will. If your Will is valid, then the court is obligated to appoint the legal guardian appointed in your Will to care for your children. If you died and your children’s other parent is still living and has not had parental rights removed, then a guardian will not yet be needed. This holds true, even if you are divorced and you are the primary residential parent.
You can also appoint a legal guardian of children in your power of attorney, perhaps to address the case where you are still living and yet a legal guardian is needed (like if you were to be in a coma).
Common questions about guardianship include:
Can I choose co-guardians?
Should I choose backup guardians?
I want to choose my parents as guardians, but they are aging and might not be able to be guardian in a few years—what is the recommended course of action?
I want to specifically exclude someone from being my children’s guardian—can I do that?
Can anyone contest whom I’ve chosen to be guardian?
What if both parents cannot agree on who should be guardian?
What if I don’t know anyone who can be my children’s guardian?
What if I never get around to appointing a guardian in my Will—what will happen with my children?
Sarah regularly counsels clients on these and other questions involving child guardianship. If you need help, schedule your Initial Consultation.
Minor’s trusts
Trusts are a good way to manage inheritances for minor children. Placing assets in a trust where the child is the beneficiary can ensure prudent asset management until the child is mature enough to manage their own assets. Some people will even choose to keep assets in trust for a child for the duration of the child’s lifetime, which can safeguard the assets from the child’s creditors, from divorce proceedings, and from the child’s own mismanagement of the assets.
A minor’s trust can be set up as a testamentary trust, which is described in your Will and not funded until after your death, or in a living trust. In the case of a living trust, the child’s trust share can be funded during your lifetime, or afterward.
Custodianship of assets
You can appoint a ‘custodian’ to take control of assets for children until they are 18, 21, or 25 years old. This method of asset management is governed by RCW 11.114. Custodial property can be used for the child’s benefit until it is finally distributed to the child.
Making your children your appointees
There are various roles that need to be filled in your estate plan, including (depending on the circumstances) Personal Representative, Trustee, guardian, custodian, attorney-in-fact, and medical agent. Most people choose trusted family members or friends in these roles, so appointing children is common.
The first thing to know is that a person must be 18 years of age in order to serve in these roles. If your child is not yet 18, we can simply state that you are appointing them to serve once they have reached the age of 18. An alternative is not to list your child in one of these roles at all, and simply amend your documents to include them once they turn 18.
I usually recommend against appointing more than one of your children to serve at the same time, for example, as co-Personal Representatives, co-Trustees, or co-Agents. It is usually advisable just to have one decision-maker in charge. Often, family members will work as a team on your legal affairs, but having one decision-maker can expedite some processes. That said, if it is important to you, you can make your children (or anyone else) equally in charge of decision making by appointing them co-Personal Representatives, etc.
Commonly, when parents have more than one child, they struggle to decide which of their children to appoint, since they want to honor and include their children equally in decision-making. On the other hand, sometimes it is quite clear which child should be in charge due to their personality, skill set, geographical proximity, or availability.
