Creating a trust is most likely the best way to protect children’s future in case both parents pass at the same time.
If you pass away in the state of Ohio without creating a will and while having minor children, your estate is going to be recovered entirely by state law and administered by the probate court.
If both spouses die at the same time and minor children are left, at that point the children are going to inherit the parents’ estate. However, minor children cannot manage or hold funds. So at that point, two issues are going to arise:
1 – Who is going to physically care for the children
2 – Who is going to physically care for the children’s inheritance, your assets, belongings etc…
A Guardian will be appointed for the children: one guardian to look over their persons and one guardian to look over their estate.
This can be the same person, this can be two different people. If no one has been appointed by the parents, which is done through a will, then the probate court is going to choose who is the Guardian both for their personal and for the finances that are left. This could include, bank accounts, house, this could include life insurance funds and a number of other things. It could be a small amount, it could be a very large amount of money.
The Guardian over the estate will have to account to the probate court for the funds and how they are spent, they are a fiduciary and they will manage the children’s money and any other property that they inherit until the children turn eighteen. On the child eighteenth birthday, that child will be given full rights over all of the money they can spend it however they like with no guidelines or controls.
This is likely to be a child who is in the senior year of high school or maybe having just graduated not much likely to be older than that. So, children at that age aren’t typically very good with money, which is a major risk.
If there’s just one family member stepping up and there are suitable, nominating a guardian will be a fairly simple process where that person will apply for guardianship to the probate court. They are likely to be granted guardianship as long as everything checks out properly.
However, if multiple family members or friends want to be guardians, particularly in situations where these children are coming with money and property, it can become a battle. At that point, the court will appoint a temporary guardian while the proceedings are taking place to see who will take care of the children.
These court battles can get very ugly. You’re looking at children who have just lost their mom and their dad and now they’re having to be interviewed by a judge, potentially a guardian, social workers. There’s uncertainty as to where these children are going to live, where they belong, who is going to be taking care of them. It is hard on these children who are already grieving both their parents.
So, it’s not a process that anybody really wants to see happening and it can take potentially a good deal of time to sort this all out, it may be a year or more until the court proceedings are finished. These things may continue to pop up in the future as people re-file. Issues keep cropping back because somebody will be filing different motions, trying to find the first guardian not to have done their job properly and to be inappropriate, maybe trying to modify companionship schedules for their grandparents.
Nominating a guardian through a will is not full proof, but what it does is it expresses your wishes to the probate court and to your family as to who you want that guardian to be. You have somebody who’s been propped in advance that they know this is going to happen so that if something happens that person is presumably there and ready to step in; they will file in the Probate Court and they are going to be the presumptive guardian assuming that nothing is wrong.
In such a situation, the intent of the parents will be given a good deal of consideration. So, that can help eliminate a lot of these court battles, both because the probate judge then knows who the parents wanted to care for their children and potentially their children’s finances, as well as family members hearing it. It may be more respected than just having nothing in place, where all the family members are going to convince themselves that they are really looking out for the kids’ best interests not realizing that the fight itself is seriously harming the children.
A testamentary trust will give parents some authority to have the money held at least until the children turn twenty-one, and potentially name who they would like to see in charge. It could also include other specifications to see the funds disbursed – College, down-payment for a car, trips etc…
Our Estate Planning lawyer can help you gain peace of mind by securing these issues. Consulting with an experienced estate planning lawyer is essential. It will ensure that your final wishes regarding your property, your loved ones, and your healthcare options are carried out.
Not all lawyers are created equal. In difficult times, it is vital to select a lawyer who can relate to your situation in a very professional and sensible way.
Our Estate Planning attorney has the experience you need to address all your questions regarding wills trusts and probate, including estate administration. She is a knowledgeable and compassionate lawyer.
We are located 5 minutes from the Portage County courthouse in Ravenna, OH. Our law firm was created in 2000, and our lawyers have been servicing the Portage County community ever since.
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