How do I ensure my wishes for my minor children in a Will are carried out and not given to the surviving parent?

UPDATED: Aug 27, 2012

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How do I ensure my wishes for my minor children in a Will are carried out and not given to the surviving parent?

Asked on August 27, 2012 under Estate Planning, Missouri


Catherine Blackburn / Blackburn Law Firm

Answered 10 years ago | Contributor

Your goal can be accomplished by including some kind of trust inside your will.  This is called a testamentary trust.  You could also create a separate trust.  If you retain control of the separate trust, can change it, and can terminate it, it is called a revocable living trust or inter vivos trust.  If you create a revocable living trust, you can write the will to "pour over" everything from your estate into the trust.  You can write the trust terms in many different ways to accomplish what you desire.

I read your question as a concern that the surviving parent not get control of any assets you leave to your children.  Without consulting with you about your specific circumstances, I can only make general comments.  My first concern would be to make sure that the representative you name in your will to administer your estate is not that surviving parent and that this representative or another independent person become the trustee of any trust you create for your children.

A couple other cautions -- First, if you need to create a trust for tax purposes, you need to have a lawyer.  Do not attempt to do this yourself with any kind of form.  Second, I generally advise against giving substantial assets outright to children at 12:01 AM on their 18th birthday.  In my experience, this does not work out very well.  I generally prefer to give the trustee discretion to hold assets or disburse them for needs or education rather than hand an 18 year old a bunch of cash.

I hope this helps and good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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