Estate Planning: Providing for Minor Children

Having a well thought out estate plan becomes increasingly more important when children are involved.  In Wisconsin, the two main estate planning tools are a will or a trust. By nominating a guardian under a will, or naming a trustee under a trust, a parent may, among other benefits, avoid family conflict and choose someone to raise a minor child as they would like them raised.

If a parent passes away without a will, the court will appoint a guardian for the child in accordance with Wisconsin Statutes, Chapter 54. A parent may “nominate a guardian and successor guardian of the person or estate for any of his or her minor children” in will. WIS. STAT. § 54.15(6). In addition to nominating a guardian under a will, a parent may also select a trustee to care for assets under a trust.

Many people are familiar with how a will works as a will has been the preferred planning tool for many years. However, there may be less knowledge regarding a trust. There are two types of trusts, a testamentary trust, created at death, and a revocable trust, created during an individual’s lifetime. Overall, as provided in further detail below, a trust provides more flexibility and control than can be achieved with a will. When a parent is deciding whether to simply nominate a guardian for their child under a will, or also name a trustee under a trust, the following characterizes of each should be considered.

Timing of Distribution of Property

The first important factor that a parent will want to consider is when the minor child will acquire control of their inheritance.

Under a guardianship, the guardianship of the child will terminate when: (1) the child reaches age 18, (2) the child marries, or (3) the child passes away. WIS. STAT. § 54.64(4).  Some parents may feel that their child will not be mature enough to use their inheritance for their long-term benefit on this age.

In contrast, with a trust a parent may authorize the termination and distribution of the trust assets under their own terms. A typical concern of a parent is the education of the child. With this in mind, a trust may provide for the termination of the trust when the child has completed his or her education or attained an age between 21 and 25. Under such terms, the child would be provided the opportunity to pursue education beyond high school prior to the distribution of the trust’s assets.

Timing of Division of Estate

In addition to the time of distribution, the timing of the division of the estate can also have significant consequences. When there are multiple children inheriting under a will, the estate is divided among the children at the completion of probate. With this division, a greater portion of the younger child’s share will be used to raise the child whereas an older child will likely have more assets to use as they please when they reach the age of majority. Had the parents lived, the children would likely have been treated differently, with the younger child receiving more for their care and then all children receiving a similar amount upon reaching the age of majority.

With a trust, parents may postpone the division of the estate to treat the children differently just as they would have had they lived. One means of doing this is to divide the assets of the trust when the youngest child reaches the age of distribution. When there is a large age gap in between children this division may make the older child wait a long time prior to their inheritance of their share. In such case, there are alternative options that may balance the different needs of the different children.

Management and Control

Another significant distinction between a will and trust, is the management and control rights of the guardian and trustee.

Under a guardianship, a guardian “may exercise only those powers that the guardian is authorized to exercise by statute or court order.” WIS. STAT. § 54.18(1). The statutory powers granted to a guardian are “those powers necessary to provide for the personal needs or property management of the ward in a manner that is appropriate to the ward and that constitutes the least restrictive form of intervention.” Id.

With a trust, however, the trustee has more discretionary authority. The trustee holds title to the property and a parent may explicitly give the trustee a broader range of authority to distribute trust assets to the child.

Conclusion

By carefully evaluating your goals and the options available, you may create an estate plan that will help ensure your child will have the future you envision for him or her in the event of your passing.

This post only includes a few of the distinctions between a will and trust in terms of planning for the care of a minor child. If you would like to discuss these tools further, or have any other questions regarding your estate plan, please contact me at mailto:kwilliams@remleylaw.com or 920-725-2601.

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