What happens to your children in the unlikely event that both you and your husband die before they reach age 18?
- Have you named who you want as guardian for your children? Guardians are the individuals who will be responsible for the care of your children if you and your spouse die before they reach age 18. The guardians should be named in your wills. If you change your mind on who you have selected, you need to make a codicil (amendment) to your will to name the new guardians.
- Are your children listed as beneficiaries on your life insurance, pension plans or other assets that require beneficiary designation? Usually, you have named your spouse as the primary beneficiary and your children as contingent beneficiaries, meaning that if your spouse is deceased, your children are the beneficiaries.
- Why might that be a problem? If your children are under age 18, they cannot legally inherit any of these assets. The court will then set up a Conservatorship for each child and the assets will be held in the Conservatorship until the child reaches age 18, at which time all the assets will be distributed to the child.
- If you don’t want your children to inherit your assets at age 18, you need to set up a Trust in your will. We call this a Will with Contingent Trust. The reason we call it a “Contingent Trust” is that the Trust will only be set up if you and your spouse die before your children reach a certain age stated in the will. In other words, there is a possibility that the Trust will not be set up.
- If you set up a Contingent Trust in your will, you can set the age or ages you want each child to be before the assets are distributed to them. Among my clients this has ranged from age 21 to age 65! You can also provide that each child receives a certain percentage at one age, a certain percentage at another age and the remainder at a third age.
- If you set up a Contingent Trust in your will, you select the Trustee of the Trust. With a Conservatorship, the Court appoints the Conservator who must obtain court approval for investments. The Trustee that you name does not need court approval to make or change investments of the Trust.
- If you set up a Contingent Trust in your will, you can state what you want the Trustee to provide for your children. For example, the Trustee may, at the Trustee’s discretion, be able to distribute income and principal of the Trust for the benefit of each of your children for their education, health, support and maintenance or you can make the Trust more restrictive.
Once you have a child, it is very important that you do Estate Planning! Don’t let the Iowa law and the courts do it for you.