All parents want to provide for their children, especially if something happens to them while the children are still minors. Often, extended family also want to help, but even good intentions can have negative effects with bad planning.
Wills and Guardianship
As an example, naming a guardian in your will does not automatically make that person the guardian of the children or give that person the inheritance to raise them. Rather, the court has the final say in the children’s guardian (most likely following the will), but the court controls the inheritance until the children turn 21 (in Colorado). Once the children turn 21, they receive the inheritance in full. So, with simply a will, the court is involved in your children’s finances, and then there is no oversight at all once the children turn 21. For many parents, this situation may be unacceptable.
Courts generally move pretty slowly in the guardianship for a minor, and can be expensive. All expenses have to be documented, audited, and approved by the court, and attorneys will often have to represent the child. The inheritance pays all these expenses. Also, courts are limited in their ability to individualize expenses for a child’s unique needs.
Sometimes, grandparents or other relatives give cash, property, and investments to minor children when they pass. Because minor children cannot control their inheritance, the courts will once again become involved. As soon as the child needs a signature, the court will get involved. Again, this may involve time and financial requirements that you may not want your children to have to deal with.
UTMA’s/UGMA’s
Sometimes, parents set up Uniform Transfer to Minors Act (UTMA) or Uniform Gifts to Minors Act (UGMA) accounts for their minor children. These accounts are often overseen by a bank or custodian. Again, courts may get involved if the accounts have a significant balance. Similar to wills, minors receive the full amount once they reach the age of 21 in Colorado.
Trusts for Your Minor Children
A better option to pass on your wealth to your children is a trust. You can do this in one of two ways. One way is to use a will to create the trust. A trust allows you to decide who controls the inheritance, not the court. You can also make it so that your children do not get everything at age 21. A trust only controls property that is put into the trust, and the will fulfills that purpose. Only after the will has been probated does your trust take effect. This does not provide your child with financial help if you are incapacitated, only after you pass.
An arguably better option is to create a revocable living trust. The main difference between this trust and the one explained above is that this trust is effective from the moment you sign it, not after probating the will. You can (and should) put your property into the trust when you create the trust. This provides for protection and financial help if you are incapacitated. You still have the ability to decide who controls the trust property and when your children get their inheritance. A revocable living trust keeps your property out of the courts, and can protect it from debts, predators, and bad spending habits. Trusts can continue your parenting style and teach the life lessons and principles that are most important to you.
Final Thoughts
If you have minor children and want to provide for them, but are unsure of what makes the most sense, contact The Rains Law Firm or schedule a complimentary meeting to discuss your options and begin to decide what is best for your family.