This column first appeared in the San Antonio Express News and other Hearst Newspapers on November 26, 2018.
Dear Mr. Premack: I know you work primarily with retirees, but since you write about Wills and Estate Planning I’m hoping you can answer this question. My husband and I have two young children, pets, and a house with a mortgage. We know we need Wills and know that if we both were to die we’d want our assets to go to our kids, but they are just 6 and 8 years old. How to we handle leaving the house and our savings to them if we die while they are still very young? – CT
Estate Planning is important for people of all ages. While those in their retirement years are often more focused on determining what happens to their hard-earned assets upon their deaths, you and your husband are perfect examples of younger adults whose situation demands careful consideration for this stage of their lives. Elder Law Attorneys, including my practice, are happy to help young adults with their planning.
Although Texas law requires a person to be 18 or older (or emancipated or in the military if under age 18) before they can legally make a Will, age is not really the big factor in estate planning. The motivating factors for young adults tend to be 1) getting married, 2) buying a house, 3) getting an inheritance, or 4) having children. You match at least 3 of those factors.
Your concern is allowing your children to inherit from you should both of you die while your children are still minors. There are two fundamental approaches that solve the issue.
First: your Wills can leave your estates to the children in a custodianship. Texas has a law call the Uniform Transfers to Minors Act (UTMA) that enables you to name a custodian to hold, manage, and disburse the inheritance for your children. For decades, use of the UTMA was a terrible idea since it stated that when the children turned 18 the custodian had to give them their inheritance with no further controls. Eighteen is just too young, usually, for responsible and adult-like money management.
However, some years ago the UTMA was amended to allow the custodian to remain in charge until the children turn age 21. While 21 is still young, it does give them several more years to mature. If their inheritance is going to be relatively small, the UTMA can be a good choice. The UTMA is often invoked by grandparents who desire to leave modest gifts to young grandchildren. But if the dollar amounts are larger or the assets are more complex (like a house with a mortgage) then the UTMA may not be adequate.
Second, your Wills can leave your estates to the children in Trust. This is a special type of Trust called a Testamentary Trust. It allows you to name a manager (Trustee), to specify the responsibilities of that Trustee while holding, managing, and disbursing the inheritance, and allows you to set conditions under which the Trustee must relinquish control to your children. One such condition can be that the children reach a more mature age like 28 or 30. Another can be that they have graduated from University. The Trust gives you a great deal of control over their future inheritance, and is the best choice for most young parents.
One other consideration: your Wills should appoint a Guardian (and alternative Guardian) for your minor children. The Guardian acts as a surrogate parent, setting the children’s’ residence, overseeing their health care and education, and managing funds they may acquire personally while still minors.
Meet with a qualified Estate Planning Attorney. Completing your Wills (and important ancillary documents like Durable Powers of Attorney and Advance Medical Directives) should enhance your peace of mind.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.