Estate Planning for Dads

Insuring your children are provided for after your death is the right thing to do. This isn’t anything you don’t already know, or you wouldn’t be reading this article. Planning the manner in which your children are provided for is another matter, and takes some decision making on your part.

There are a number of things for you to consider, a number of avenues to explore and a number of tools available to you for transferring your property to your children. Not every estate planning tool is right for your situation, so it becomes important for you to evaluate your situation. The easiest method may simply to prepare a will, leaving all of your property to your children, but that may not be the best method.

The available options will depend on your current marital status, the state in which you reside, the type of property you own, the manner in which it is held, whether you prefer court supervision or informal supervision, and a number of other factors. This article is not meant to be an estate plan, but will highlight some of the more popular options used, as well as the effect certain life factors will have on your plan, with some advantages and disadvantages of each.

Married vs. single

If you are presently married, leaving all of your property to your children may present obstacles. If you are in a community property state, a portion of the property belongs to your spouse. In other states, there are spousal election laws upon the death of one spouse, where the spouse will have a choice to take what is left to her in the will, or a portion of the estate, as set by law, unless she consents, in writing to the property left in the will.

Finally, if property is held in joint tenancy with your current spouse, that property would go to her, regardless of what the will says. It might be easier to have a discussion with your spouse and let her know your wishes, and she may very well consent to leaving property to your children.

Adult vs. minor children.

If the children are adults, you can leave property to them outright, through your will, a trust or through some type of joint tenancy. This isn’t required, however. If you fear your children will blow through their inheritance, you can set up a trust through your will or without a will that will give them periodic payments. If your children have credit problems and you fear their creditors may obtain their inheritance, you can create a “spendthrift provision” that will prevent a creditor from attaching the proceeds.

If the children are minors, either a trustee will be named in your trust document (either through your will or a living trust), or a conservator will be appointed by the court to manage the property. In your will, you will want to name a person you trust to act as conservator. It is a good idea to name two, in case the first conservator can’t, or won’t serve.

Trustee vs. Conservator

A trustee is a person named in a trust document to manage the property placed in the trust. A conservator is a person named by a court to manage property of a conservatee, (in this case, your children). The conservator will need to provide an accounting to the court. In a trust, the trustee usually doesn’t have to account to a court, unless the trust document itself provides for it. There is generally much more supervision in a conservatorship than there is in a trust. Which avenue you choose depends upon how comfortable you feel with the person managing the property of your minor children.

Property to be distributed

Cash, bank accounts, retirement death benefits, life insurance proceeds and other items easily converted to cash are the most easily managed. They can be placed in a bank account or an investment account, but usually won’t require day to day management. An ongoing business and real estate will require more management than cash, and administration or management fees should be considered. A trust or will can give the trustee, executor or conservator power to sell these assets if you feel it would be too expensive for a third party to administer.

Retirement accounts and life insurance proceeds will NOT pass through a will, unless the beneficiary is the estate. This means, if you name your spouse as a beneficiary on your life insurance policy, but your will leaves all of the property to your children, the wife will receive the proceeds. This is true even if the will specifically mentions the policy.

Joint Tenancy vs. Pay on Death Accounts

Sometimes, with cash accounts, people will place their children on the account as a joint tenant. This method will make transfer of this money easier, but there is a caveat. One, if the bank account is set up as joint tenancy, your children, if named as a joint tenant, will have access to this money. Worse, if they are having credit problems, a creditor may also have access to this money.

A better solution may be a Pay on Death Account, if it is allowed in your state. A POD will transfer the property to who you name on the account upon your death, but they will have no ownership interest in the account while you are alive. Some states now permit a transfer on death deed for real estate. Certain language must be used, and they are not permitted in all states.

Conclusion

As you can see, you have options available, and have circumstances to consider. With a little thought, you can develop an estate plan that will make transfer of your property run as smoothly as possible, and will help ensure your final wishes are followed.