Estate Planning Practice Blog

Obligation to Provide for a Minor Child?

Sometimes an interesting question is posed by a client -- do I have to leave something for my minor child in my Will?

Remember in most estate planning documents and for most families, a couple with children will typically leave their entire estate to their spouse or partner knowing that the surviving spouse or partner will properly provide for their children through their majority and beyond. But what happens if you don't leave your estate to the other parent and have a minor child in question? Are you legally obligated to provide for that minor in your estate planning document?

Well, it depends. (And this is appropriately framed by the Thursday, April 17 Lawyer joke of the day calendar entry: "A law school professor said to a graduating class, "Three years ago, when asked a legal question, you could answer, in all honesty, 'I don't know.' Now you can say with great authority, 'It depends.'")

It depends on which state you live in. Each state has different laws that may touch upon this issue.

It also depends if there is another document or obligation, which may be enforced at a parent's death and his or her estate to provide for the minor. For example, a divorce decree or judgment may state child support obligations incur beyond the death of the parent until the child reaches majority.

But typically, in California for instance, there is no legal obligation to specifically provide for a child in your Will or Trust.

This is an issue, however, that must be discussed with your estate planning attorney and addressed in light of your particular situation.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Do-It-Yourself Wills and Trusts.

DIY or Do-It-Yourself is a big thing among Americans. Many of us handle DIY home remodeling with much success. We also handle many other areas with DIY success. [Though my attempt to darken my hair color with a $8 DIY box of hair dye sent me to the salon within the week to pay for ten times that amount to correct the harsh color process I inflicted on myself. ]

The DIY culture is pervasive and the Internet age certainly makes it easier now than ever before to prepare your own Wills and Trusts.

But the general consensus among estate planning attorneys is that DIY Wills and Trusts are almost never done right and can easily cause problems later on when the person has died generating attorneys fees, which only benefits the attorneys and not your estate. One of the biggest errors with DIY Living Trusts is that while the trust is properly created, it is never funded and, thus, rendered useless.

I find it very hard to discourage someone who is hellbent on DIY for their own estate planning. But one way to ensure that your DIY Wills and Trusts are done properly is to hire an estate planning attorney by the hour to review your documents and identify your mistakes, if you have any. The attorney can also assist with property transfers to your Living Trusts.

Gifts of Tangible Personal Property.

What about personal items like Grandmother's china or your Dad's favorite fountain pen? How do you give gifts of personal items after you pass away to your loved ones?

One way to do this is to create a separate writing alongside your Will. California Probate Code Section 6132 allows for a separate writing incorporated by a testator to their Will to make specific gifts of tangible personal property. This Code Section allows you to give gifts of personal items up to a $5,000 value of a single item and include as many personal items so long as the aggregate value is no more than $25,000 for these single items.

This separate writing can be done either before or after you execute your Will.

It is a nice way to keep a small list who is to get what without having to involve your attorney every time you acquire another valuable item of personal property or change your mind about who gets what.

What's a Thirty-Day Survivor Clause?

Stan Rule, a Trust and Estates attorney in British Columbia, has explained very matter-of-factly the survivorship clauses often included in most Wills and Trusts.

The general consensus is that a 30 day survivorship clause is a good thing. It doesn't have to be 30 days: it can be longer or shorter depending on what you are thinking.

Talk to your estate planning attorney about including this clause if you don't see it in the drafts presented for your review.