Estate Planning to Protect Your Children
It has been written that death is as much a reality as birth, growth, maturity and old age — it is the one certainty of life. Thus, there may come a time when a parent, for example, is unable due to physical or mental incapacity, to take care of his or her minor children. In these circumstances, those caring for the children will need direction. By writing a Will with instructions on guardianship, one may select someone with the legal authority to act as guardian for the minor children and provide the control over assets for the children. Wills and Estate planning are just as important for young families with minor children as they are for senior citizens.
A Trust within a Will is often a good way to prevent minor children and grandchildren from blowing their inheritance.
Trust Clause in a Will
In the event that your spouse predeceases you, dies with you in a common disaster, or dies within thirty (30) days of the date of your death, you will probably give all your property to your children in trust, to be divided into equal shares so as to provide one equal share for each of your children to be held by a Trustee selected by you. You may direct that the income and principal of each child's share shall be held as a separate trust, and distributed by your Trustee for the following uses and purposes:
A. To invest, reinvest, and keep it invested in accordance with the powers vested in your Trustee and to collect, recover, and receive rents, issues, interest, income, and profits thereof, and after deducting proper and necessary expenses of the trust;
B. To use the net income from each child's share and so much of the principal as your Trustee, in his sole discretion deems advisable for the medical expenses, care, support, and maintenance, including education in preparatory school, college, and professional school, of your children. Your Trustee may apply such income or principal for the benefit of your children directly or by payment to the person with whom your children reside or who has the care or control of your children.
C. The principal held in each child's share shall be distributed to him or her upon his or her attaining the age of thirty (30) years. At the Trustee’s option, upon either of your children attaining the age of twenty two (22) years, the Trustee may distribute one-third (1/3) of the principal held in such child's share to him or her. Thereafter, the Trustee may, when either child has attained or upon attaining the age of twenty five (25) years, distribute an additional one-half (1/2) of the balance of the principal held in such child's share. Upon attaining the age of thirty (30) years, the balance of the principal held in such child's share shall be distributed to him or her.
D. In the event of the death of a child of yours prior to complete distribution of the share set aside for him or her, such share, or the remainder thereof, shall be distributed, per stirpes, to his or her then living issue, if any, or if none, per stirpes to your then living issue.
Most individuals select their spouse to serve as Executor of their Will. In the event that he/she shall predecease you, or fails or ceases to act, then your Will should select a trusted family member or close friend to serve as successor Executor of the Will
Most individuals appoint their spouse to act as Guardian of the person and property of your minor children. It is suggested your Will include a clause providing that in the event that your spouse predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, then you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.
Your Executor, Guardian and Trustee, including your successor Executors, Guardians and Trustees, hereinafter referred to as "your Executors, Guardians and Trustees", may also be given the following powers in addition to the powers vested in fiduciaries by law, to wit:
A. To retain any investments comprising your estate at your death for such length of time as your Executors, Guardians and Trustees may think proper, without liability by reason of such retention.
B. To make such investments and reinvestments of principal and any accumulated income and in such proportions without limitations to what are known as legal investments as your Executors, Guardians and Trustees, in their sole discretion, may consider proper, including but not being limited to holding cash balances and tangible personal property, and investments in preferred and common stocks of corporations and interests in common trust funds, it being your intention to give to your Executors, Guardians, and Trustees broadest powers of investment.
C. To buy, alter, repair, improve, sell, mortgage, lease, exchange, or otherwise develop, operate, or dispose of any business, real, or personal property as part of your estate at any time for such prices and terms and in private or public transactions without court hearing, or approval, as may seem proper in the sole discretion of your Executors, Guardians and Trustees without any liability on the purchasers to see to the application of the purchase money.
D. To make distributions in cash or in kind, or partly in cash and partly in kind, and in such manner as your Executors, Guardians and Trustees may determine, and at valuations finally to be fixed by your Executors, Guardians and Trustees.
E. To compromise, arbitrate, or otherwise adjust claims in favor of or against your estate.
F. To make payments to the person with whom a minor child resides or who has the care or control of such minor, without the intervention of a guardian. Your Executors, Guardians and Trustees shall not be obligated to supervise or inquire into the application of such amounts by such person and the receipt of such person shall be a complete release of your Executors, Guardians and Trustees.
Many people direct that the provisions of a Will shall also apply to all of their afterborn children. Therefore, if you have any additional children subsequent to the execution of a Will, then wherever you have designated only your named children you intend that all of your named children shall share equally, per stirpes, in the residuary provisions of your Will. In addition to having a formal Last Will and Testament, individuals are encouraged to plan ahead and write messages to their family and executor detailing their specific desires regarding funeral and burial. Written instructions to your family and executor containing information and guidance will minimize uncertainty, confusion, and possible oversights following your death.
While the preceding article contains possible items to be discussed with your family, attorney and executor, the article is by no means exhaustive. A number of these items may not be applicable in your situation, and probably there are many others that are applicable. The important thing is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also editor of the ABA Elder Law Committee Newsletter. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA-YLD Service to the Bar Award.