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Ask The Lawyer

Trusts and Estates Law

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Q: I have two minor children from my previous marriage, and want to be sure that everything I have goes to them. I am planning on having a Will prepared, but want to be sure that in the event that tragedy strikes while they are still under-age, that my ex-wife does not get control of my estate. Would a Will accomplish this or is there some other vehicle like a Trust, a Life Insurance Policy or some combination, that would be better suited to protect my assets?

A: With proper planning, you can accomplish your objectives under a Will, but you must be mindful of the caveats noted below.

Appropriately, you ask whether a trust should be established for your minor children. The answer is “probably,” but depends on the nature and value of your assets. Trusts are important legal vehicles that serve a variety of functions, including a structure for management and protection of assets for minors. There are three necessary parties to a trust: (1) the creator or grantor; (2) the trustee and (3) the beneficiary. A trust may be established during your lifetime (an inter vivos) trust, or at death under your Will (a testamentary trust, which is contained in and part of the Will). If you decide to use a testamentary trust, such a trust will not come into existence until your death.

Any trust, whether inter vivos or testamentary, must set forth in the terms and conditions under which the trust assets are to be distributed by the trustee, and when the trust is to terminate. Many trusts terminate at a certain age (for example at age 30 or 35) but there may be compelling reasons to establish a trust for a child that lasts for his or her lifetime. Important tax and non-tax considerations must be considered when deciding on those trust provisions. A trustee, as a fiduciary, is obligated to follow the terms of the trust that you create. Unless otherwise set forth in the governing document, trustees are entitled to compensation for discharging their duties based on rates set forth by statute.

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