How do I make sure my minor child is taken care of if I die?

There is a common misconception that you can simply tell a trusted friend or family member that they are the person you would like to take care of your children in the event of your death. Unfortunately, a conversation like this is not enough to ensure that your wishes will be fulfilled. Rather, you should have your decision explicitly written in a legal document. Two options are a Will or a Revocable Trust.

Using a Will to Appoint a Guardian for Your Child in the Event of Your Death:

A. Biological versus Stepparents

Appointing a guardian to take care of your minor child in the event of your death is a smart way of ensuring that your wishes are clearly communicated. However, it must be noted that Wisconsin law presumes that biological parents are the natural guardians of their children. Thus, if you are in a subsequent marriage and would instead prefer that your spouse (your child’s stepparent) be selected as a guardian in the event of your death, you should state your reasons as to why you believe your child’s biological parent should not be guardian in addition to appointing your desired guardian. Some examples of reasons for non-appointment include substance abuse, lack of contact with the child, abuse, unsafe conditions, stability, etc.

When a Will with such guardian designations is admitted to probate, there is no certainty that the court will respect your wishes and name a stepparent rather than a biological parent as guardian. However, clearly spelling out your reasons will increase the chance of the court appointing your desired guardian.

B. Children 14 and older

Another thing to consider is the age of your child. Wisconsin statute §54.15 allows children who are 14 years or older to choose their own guardian and the court will approve the appointment so long as it is in the child’s best interest. Children 14 and older can also object to a guardian that is proposed by the court or in a Will, even if that guardian is a biological parent. The child’s objection is another factor the court must consider when naming a guardian.

C. The Personal Representative’s Job over Minors:

Every Will should name a person who may act as Personal Representative (also known as Executor) of the estate. The Personal Representative’s job is essentially to collect all assets, pay all debts and taxes, and then distribute the remainder to the beneficiaries of the Will. If one of the beneficiaries of a Will is a minor, then the Personal Representative will distribute the minor’s assets to the minor’s guardian, rather than directly to the minor.

Using a Trust to Appoint a Guardian for Your Child in the Event of Your Death:

A. Age limits in a Will versus a Trust

Trusts are often drafted in conjunction with a Pour-Over Will, which is used to transfer to the Trust any forgotten property that was not originally put in Trust. Thus, a parent can appoint a guardian in a Pour-Over Will just as he or she can do in a simple Will. However, in a simple Will, the child’s guardian will cease to act once the child reaches adulthood, resulting in the child officially taking possession of the assets left to him/her in a Will at age 18. Some parents cannot imagine their 18-year-old child responsibly using such assets.

As an alternative to a simple Will, parents can choose to draft a Trust with a provision requiring the child to reach a certain age of majority before taking possession of the assets. With a Trust, the Trustee will manage the property that your child is intended to inherit until your child reaches the age of majority. The age of majority is entirely up to the parent drafting the Trust; however, many Trusts set the age of majority at 25, 30 or 35 years old.

B. Trustee management of a child’s property

A person called a Trustee, which is selected by the Parent and named in the Trust, is in charge of managing your child’s inheritance until he/she reachs the age of majority and is required to distribute the inheritance as specified in the Trust. Typically, Trusts allow the Trustee to distribute a part of the inheritance to your child for their health, education, maintenance, and support. What constitutes health, education, maintenance, and support is typically up to the Trustee’s discretion. However, the parent or Grantor of the Trust may get more specific and narrow the distribution to the child, for instance, educational distributions can be limited to a specific field or specialty or study.

Conclusion

Choosing whether to provide for your minor child in the event of your death via a Will or with a Trust is a serious decision and often requires a complete overview of your assets and goals. Meeting with an estate planning attorney to determine which option is best for you is the first step in making sure your minor children are cared for in the future. Contact Wynn at Law, LLC today to set up an appointment with an estate planning attorney who can assist you in choosing which document to draft and make sure your wishes are carried out.

Schedule a Consultation with Wynn at Law, LLC to Assist with the Will or Trust Drafting Process

Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.