If you have children under age 18, you should have trusts for each of them in your will or revocable trust. If minors under 18 years old inherit any assets from you, a guardian of the property (as opposed to a guardian of the person, which you designate in your will) must petition the court to be appointed to take care of those assets for your child. A guardian of the property must be bonded (which requires annual premium payments), and the guardian must file a formal annual accounting of the assets with the court, along with a petition for approval of the accounting.
The guardian will need a lawyer, and perhaps an accountant, to assist with satisfying these requirements. The costs of all this would be paid from your child’s funds.
To avoid these expenses, your will or revocable trust should create a trust for each of your minor children upon the death of you and your spouse. These trusts are created right within your will or revocable trust. You can appoint a trustee in your will or revocable trust to manage your child’s assets and provide that the trustee need not post a bond. Furthermore, a trustee is not required to file an annual accounting with the court.
Even if you expect your children to be over age 18 by the time you and your spouse die, you may want to consider keeping assets your children inherit from you in a trust to protect them from themselves until they reach an age when you think they will be financially and otherwise mature. This could be age 30, 35 or older. You may even want the trust to continue for their lives to protect the assets in the trust from future claims of your children’s creditors, including in the event of their divorce. Assets that continue to be held in the trust are not subject to claims of a child’s current or future creditors.
Trusts created for your children can be extremely flexible. The trustee can have the power to make liberal distributions to the child for any reason you would like, or for any reason in the trustee’s complete discretion. At the age you specify, the child can become a co-trustee of his or her own trust and can have the power to remove the original co-trustee making the distribution decisions, thus giving the child enormous control over his or her own trust.
There are many reasons to create trusts, and each family’s circumstances are different. It is important to discuss these issues with your estate planning professional.
