Most parents are aware of the need to appoint a guardian for their children in case of their deaths before the child reaches 18. This is accomplished in a properly executed will. A guardian is responsible for the person of the child: what he/she eats and wears; where the child lives and goes to school. Thought needs to be given to the estate of the child; that is, the inheritance that the child will be receiving. Guardianship does not automatically include control of the child’s financial assets.
Many alternatives exist for the handling of a child’s finances. The simplest method is to appoint a custodian to control the funds under the Uniform Transfer to Minors Act (“UTMA”). Under the provisions of this law, the custodian is authorized to invest the funds and to spend them for the support and education of the child. It is important to know that the child can demand that the account be turned over to him at age 18 unless (21) is added to the title. For example, a clause in the will could read “a one-half share to my son Frankie to be held by John Smith as custodian under the Uniform Transfer to Minors Act (21).”
To retain control of a child’s share beyond the age of 21, a parent must establish a trust for the child. This trust can be set up to take effect at the death of the parents if the child is then under a certain age. A trustee would be appointed in the document (a will or living trust) to control the funds until the child reached the age where the parents thought he/she would be sufficiently responsible to take ownership of the account. Thus, the provision could state that, when the parents are deceased, the inheritance for a child under the age of, say, 30 would be held until the child reaches 30. Until then the trustee may distribute such amounts of income and principal as may be necessary from time to time for the health, education, support and maintenance of the child. The trust may also allow distributions of principal at certain ages such as ½ and 25 and the balance at 30, or a certain sum upon graduation from college.
Increasingly we are seeing another use of trusts for children. Parents, concerned that the inheritance they give to their children may be lost to a creditor of the child or through a bad marriage, are establishing trusts that will last the lifetimes of their children. Parents will set up separate trusts to take effect at the death of the second of them to die for each of their children, no matter what the age of the child. These trusts typically require that all the income generated by the funds (dividends and interest) be paid out automatically to the beneficiary and give the trustee broad discretion to distribute principal as needed for the beneficiary or his/her children. Whatever balance is left at the death of the child can be directed to be distributed to his/her children, and often the child will be given the right to appoint the balance then remaining among his/her children as seems appropriate. This allows the child to place assets where most needed among the children.
The benefit of a lifetime trust for the child is that it keeps the inheritance segregated from marital assets and, thus, free of the claims of creditors and a divorcing spouse. Too, if the trust is properly drafted, the child can be the trustee for his/her own trust and therefore retain control over the funds.
From "Amy & Dan Smith's Planning for Life" column appearing monthly in the Blue Ridge Leader, Loudoun County, VA.
The foregoing article contains general legal information only and is not intended to convey legal advice. For legal advice regarding estate planning, the reader should contact his/her lawyer.
Daniel D. Smith is a partner in the law firm of Smith & Pugh, PLC, 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176. (Tel: 703-777-6084, www.smithpugh.com).
Amy V. Smith Wealth Management, LLC is an independent firm. Amy V. Smith, CFP, CIMA offers securities through Raymond James Financial Services, Inc., member FINRA/SIPC. Her office is located at 161 Fort Evans Road, NE, Suite 345, Leesburg, VA 20176. (Tel: 703-669-5022, www.amysmithwealthmanagement.com). Any opinions are those of Amy and Dan Smith and not necessarily those of Raymond James. Raymond James does not guarantee that the foregoing material is accurate or complete and does not provide legal advice. Dan Smith is not affiliated with Raymond James.