NASE Blogs

Protect Your Children

Mar 24, 2011

Q: My husband and I have three children under age six. Do we need wills?

A: You should each have a will for the benefit of your minor children.  Here's why: If one of you dies the surviving parent will naturally continue as the children's guardian. But if both of you die your children will need to have a guardian appointed and the court will need assistance in determining who that person should be.  Your individual wills allow you to name that guardian, someone who you believe to be the best person to care for and raise your children. You can also name an alternate guardian in case your first choice can't serve.

Another reason for each of you to have a will is that in the event that both of you were to die you can have your combined assets placed in a testamentary trust. (A testamentary trust is a trust created by the provisions of a will.) A substantial advantage of creating a testamentary trust is that the children's guardian, or a separate person named as trustee of the trust, could spend the trust assets for benefit of your children as their needs required instead of simply dividing your assets equally between your children.  In addition, a trustee with adequate experience can manage the trust assets to achieve the best possible income etc.  Obviously you must give serious consideration both to whom you choose as guardian and whom you choose as trustee.  If you are fortunate you know someone who qualifies to fill both positions and who is willing to serve as both guardian and trustee.

Why not just leave your assets to your children in equal shares?  Here's why: People generally spend money based on family needs as they arise. They may spend more on one child than on another because of health, education and other varying circumstances. If both parents die, they usually want the family assets to continue to be used in the same way. By creating a testamentary trust at the death of the second parent, the trustee can be directed to use those assets to meet the needs of the minor children just as the parents would have if they had survived.

We encourage you to consult an attorney who specializes in wills, estates, trusts, elder law, etc.  Attorneys are listed by specialty in most yellow pages. 

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