(Photo Illustration - MetroCreativeConnection - Legal-Ease - Gerald W. Townsend)

Actually, this column may be of more interest to your children than to you. But, as you’ve known all their lives, they may not know what they need unless you tell them.

By far, most of the people with whom I discuss writing wills are elderly. No doubt, as we age we become increasingly aware of our own mortality and want to “get our affairs in order.” Also, as the need becomes more apparent, the cost of planning seems more reasonable.

For those who don’t get around to preparing their own will, the state law sets up an inheritance plan which, by and large, will satisfy many of my senior clients. For example, West Virginia’s law of Descent and Distribution (the law which determines where your stuff goes if you die without a will) says if yours is the “traditional American family” where you and your spouse are the parents of all of your children, what you own when you die will all go to your spouse. If your spouse is not living when you die, it will go equally to your kids. This result parallels the plan which most of my clients in traditional families set up.

The people who need wills most are those of your children’s generation. They, unfortunately, also are the ones who feel they can least afford them, what with the cost of child rearing and all. Let’s look at some of the results which they will encounter without a will and how a will can improve those results.

First, if your child who is parent to minor children dies without a will, all will go to his or her spouse. If that happens, probably there will be no problem. But what if both parents are gone? Then, upon death of the last parent to die their combined assets would pass to their children, who, if they are under 18 years old, are too young to manage them. A guardian/conservator selected and appointed by a court will take charge of the minor child’s inheritance for the purpose of managing it until the child becomes 18. The guardian/conservator will have to post a bond to guarantee his or her honesty. Of course, the cost of the bond will be paid from the child’s inheritance.

The guardian also will have to file periodic reports with the probate court, all involving cost of preparation and processing, again, paid for from the child’s funds.

The guardian/conservator’s job will end when the child reaches 18 years of age and becomes an adult. At that point, the child becomes entitled to receive his or her inheritance outright. Even though, for most purposes 18 is the age of adulthood, how many of us were mature enough, absent parental guidance, to manage an inheritance wisely when we were 18? I certainly would have spent mine on fast cars and faster playmates!

With an adequately drafted will, your child and his spouse can protect your grandchildren’s inheritance in case both parents die while any of your grandchildren are under 18 years of age, or even older. In their wills, your kids can provide that if any of your grandchildren are under a stated age, the grandchild’s inheritances will go, not to the child directly, but into a trust (a management container) to be managed by a trustee (caretaker) for the benefit of the young grandchild. Indeed, one of the beauties of such a will, containing a trust for the benefit of immature children, is that the trust does not have to end when the child becomes 18. Most of my clients choose to leave the children’s inheritance in the more mature hands of the trustee until each child reaches a more responsible age, say 25. Now, there’s nothing magic about 25. Some folks think that age will allow their kids a chance to complete advanced education before having to manage their inheritance. Others think that their children will have had a chance to make their first round of mistakes, whether business or marriage, before becoming 25, and therefore can cut their teeth on adult living without endangering their inheritance.

Most of my clients choose an individual to be the trustee, with another trusted friend or relative in reserve in case the first choice cannot do the job. Some clients choose to have a bank act as trustee. Banks provide professional trust management, but will charge a substantial fee each year for their services. Individuals probably won’t charge a trustee’s fee, but may not have the management skills and resources that a bank has.

Regardless of the unique plans your children want to make, don’t you agree that your kids making those plans — including deciding to spend the money to do so — is something your grandchildren deserve? Maybe you can help convince your children that such planning is more important than getting another adult toy.

***

Gerald W. Townsend is a partner in the elder law firm of Fluharty & Townsend, Parkersburg. His practice focuses upon meeting the legal needs of seniors in West Virginia, with special emphasis upon protecting the home and life savings from the cost of nursing home care. He can be reached at jtownsend@fntlawoffices.com