Wills & Trusts

Most married people with minor children want a will for each of the spouses that are substantially identical, with both providing that on the death of the first to die, the surviving spouse takes the entire estate. On the death of the second to die, the estate goes into a trust for the health, education maintenance and welfare of any child(ren) who have not then attained the distributive age: if all children have reached the distributive age on the death of the second spouse to die, then the surviving children share the estate equally (with a pre-deceased child's share going equally to any grandchildren born to such a child). If any of the children are below the distributive age at the death of the second spouse to die, then the trust remains in effect until the youngest living child attains the distributive age.

During the existence of the trust, the trustee manages the trust estate reasonably, and makes distributions from the trust estate for the health, education, maintenance and welfare of any children who have not yet attained the distributive age.

The spouses making the wills determine the distributive age, which must be over 18 years, and they also determine the identity of the trustee, who should be someone they trust to make the same quality decisions about the health,
education, maintenance and welfare of their children that they would have made
had they survived. The spouses should identify a first and a second choice for trustee (each choice should be one person, not two or more persons, to avoid potential conflict).

They also identify a first and second choice for guardian of any minor (under age 18) children who may be living at the death of the second of the spouses to die. Couples are acceptable as guardians, but are not favored, again because of the potential for conflict in decision-making.

The spouses making a will also identify a first and second choice for personal representative of their estates. A surviving spouse is a common choice.

They may also require that on the death of the second of them to die, their personal representative must distribute personal property to recipients named on a list that is signed and attached to the will: such a list is commonly used to identify items of memento value to be left to persons other than children. If there is no list attached to a will on the death of the second to die, then all of the estate goes to the children (and grandchildren of any deceased child). The benefit here is flexibility: items of memento value (and the recipients thereof) can be changed as circumstances change in future, without having to re-draft the entire will.

In practice, after answering questions and obtaining the necessary information, I draft a will for each of the spouses, and I send them for review by mail. After the spouses have read and understand them, and they have been found to be correct and complete, then a meeting is scheduled in my office to sign the originals, and have them witnessed and notarized by staff in my building. I then deliver the original wills and an executed copy of each will to the spouses, and I keep an executed copy in my file, if requested to do so. The original wills and the executed copies are all equally valid. I recommend that the original wills be kept in a safe deposit box, and that the executed copies I give to the spouses be kept in a place of safe keeping in their home. By spreading them out between the bank, the spouses’ home and my file, the risk of accidental loss or destruction is limited.

At the time of delivery of the executed wills to the spouses in my office, I collect my fee, which is $200 per will, or a total of $400 for trust wills of the type described above. Additional fees are required for more complex wills. In any case, fees are agreed upon prior to any obligation being incurred.

There are a number of other matters of significance in this area, which are beyond the scope of this article. For example, I do not practice estate tax law. I recommend that competent estate tax advice be obtained prior to making any will. Similarly, the question of distribution of shares of the estate to children who attain the distributive age before or during the existence of the trust must be discussed, as must the matter of distribution of the estate in the event no children or grandchildren outlive the second spouse to die.

Please contact me at your discretion to discuss the specific requirements of your situation.