In my years as an estate planning attorney, I have seen the negative consequences of no estate planning for young families. Here is what happens to a Young Family that die without a formalized estate plan in Illinois:
What Happens to a Young Family’s Estate when there is No Estate Planning:
1. Division of Probate Assets:
Your surviving spouse and your children will divide your probate assets 50/50. It doesn’t matter if your child is 6 months old — they still inherit 1/2 of your probate estate. It doesn’t matter if you own a business — your children will inherit 1/2 of your business. Also, it doesn’t matter if your spouse may need all of your estate to live on after you die — without estate planning your children are entitled to one have of your probate estate.
2. Who takes care of the children?
If there is a surviving spouse, then he or she would continue to care for the children. However, if both parents die at the same time and no guardians for the children have been named in a will, then family members would have to petition the court to be appointed guardians of your children. This could be a contentious court battle to see who becomes guadians of your children and you don’t have any control over who gets appointed.
3. How is money managed for your children?
In the event that both parents would die at the same time (such as in a car accident, etc.) without an estate plan, the Courts would have to appoint a guardian to oversee and manage money your children inherit until they turn 18 years old – and once they turn 18 years old your children would then have control over their inheritance.
Recommended Estate Plan for Young Families:
There are many things to consider when designing an estate plan; however, a basic estate plan that will give a young family Peace of Mind will generally consist of the following for each spouse:
a Will with Children’s Trust;
a Power of Attorney for Property; and
a Power of Attorney for Healthcare.
Here are the things a Young Family Needs to consider for their estate plan:
1. Naming an Executor for Your Estate.
Who should be the Executor of your estate? An executor is responsible for probating your will, paying your debts, collecting your assets, and settling your estate. Generally if you are married you would appoint your spouse as your first choice for Executor, but I generally recommend you name one or two alternative people to be your executor just in case the person you originally name can’t act for some reason.
2. Naming a Guardian for your minor children.
In the event of your death, who should be guardian of your minor children? A guardian has physical and legal control over your children until they reach the age of eighteen. You can name a guardian of your children in your Will and that would avoid the need of the courts having to avoid appointing a guardian for your children. Again, I generally recommend you name one or two alternative people to be your children’s guardian just in case the person you originally name can’t act for some reason.
3. Naming a Trustee for the Children’s Trust
In general I recommend that anyone with children should have a “Children’s Trust” in their Will. This means that if both you and your spouse were to die, your assets would be divided equally among your children (unless you have indicated that it should be divided some other way) and those assets would be placed in trusts for the benefit of each of your children until they reach an age designated by you. The Trustee of the Children’s Trust manages the money/assets in the trust and makes decision on when distributions should be made to each child in order to provide for the support, education and health of each child. If you do not establish a trust in your Will, your children inherit their share of your estate at age eighteen.
Below is the standard language set forth in my typical trust that describes how the trustee should spend the money in in the Children’s Trust.
“The Trustee shall distribute to the Beneficiary so much of the net income of the trust, and so much of the principal thereof as the Trustee from time to time believes desirable for the reasonable support, education and health of the Beneficiary, considering the other resources of such Beneficiary known to the Trustee.”
A trustee manages the assets for your children or other beneficiaries until they reach specified ages. Many times people will name individual persons for their first and second choices of trustees and then name a bank or trust company as a back-up trustee in case your first or second choices for trustee cannot serve.
Many people prefer that the children’s trust remain intact after their children turn 18 years old. The general thought is that children in their late teens/early twenties do not have the experience, responsibility, etc. to properly manage a large inheritance on their own and it is best for the trustee to remain in control of the trust funds.
Many people prefer that their children would be given direct access to their inheritance gradually. For example, a trust can distribute 1/3 of the trust principal to a child at age 25; 1/2 of the remaining trust principal at age 30 and the remaining trust balance at age 35. This is a personal preference and should be decided on a case by-case basis for each family.
I have guided many young families through the process of planning their estate. I have refined my process over the years to make so that you can have an estate plan you feel comfortable with and you know will take care of your family in case you would die or become disabled unexpectedly. Most clients feel a sense of relief and peace of mind once they have their estate planning done.
If you are a young family and know you need an estate plan but don’t know where to start call my office or send me an e-mail. Before committing to anything all my clients know my estate planning process and fee structure. I charge on a flat fee basis that is quoted up front – so there is no mystery or suprises over costs of your estate plan.
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