We've just had our second baby. What should we specifically include in our estate plan to protect our children?

For parents of minor children, there are certain essential estate planning provisions that should be included in the language of a will or trust that will help bring about clarity and consistency in the event of the unthinkable.

First, parents must discuss and select a guardian to care for minor children in the event both parents become unable to do so due to death or incapacity. This decision may be difficult, but if no guardian is selected by will or trust, the probate court will appoint someone to fulfill this role –  a person who may or may not reflect the parents' true wishes.

When choosing a guardian, be mindful of several factors:

• The age, mental and physical health of the guardian
• Relationship between the child(ren) and the guardian
• The guardian's ability to provide financial stability
• The guardian's willingness to serve in this role
• Whether the guardian will be compensated, and if so, to what extent

After choosing a guardian, a Will or Trust should also direct the creation of a sub-trust for the benefit of the minor children. There are several types of children's trusts that may be created, and an experienced estate planning attorney can help guide you as you make your decision.

In any event, there are certain issues to decide upon when creating a sub-trust on behalf of minor children. First, be sure to choose a reliable trustee to oversee the property in the trust and make distributions as appropriate. The trustee may be the same person chosen as guardian, but it need not be. In fact, some families elect an institutional trustee (i.e., a bank) to serve in this role.

Secondly, determine the age at which you feel comfortable with your children receiving an inheritance. Some parents opt to make the entire lot available once the child reaches age 18, while others choose to stagger the distribution across several milestones. In addition, it is not uncommon for parents to place a condition on the receipt of money at a certain age, such as “distribution at age 18 if the child is accepted and enrolled in college or university, otherwise distribution at age 25.”

If you have minor children and would like to set up an estate plan to ensure each is protected, please contact Andrew Byers, Attorney and Counselor at Law. Located in Auburn Hills, Michigan, we can be reached at 248-301-1511.