Leaving Property to “All My Children” is Not so Simple

As a parent, a major reason you should make a will is to ensure that your children are provided for — whether they are minors or adults at the time of your passing. However, leaving property to your children is not as simple as it may appear. Careful attention must be paid to the wording of your will.

Married couples typically have “mirror wills” by which each spouse grants their property to the surviving spouse and provides that upon the survivor’s death, all property goes to their children. But the identity of the children and the success of their legacies may be in doubt. For example, either spouse or both may have children from prior relationships. It must be clear from the will whether these children are entitled to shares of the spouses’ estates. In addition, there should be directions given about children born or adopted after the will is drafted.

Secondly, there is no guarantee that, upon the death of the surviving spouse, the children of the first spouse to die will receive any property. The surviving spouse can change his or her will at any time and thereby negate the stepchildren’s inheritance. In order to guard against that possibility, those children should be named as direct beneficiaries.

Wills often provide that the decedent’s children are to share equally in the estate. But if one of the children should die before you, what happens to that child’s share? If the will is silent on that question, the property would be divided among the surviving children. However, that leaves nothing for the deceased child’s offspring — namely, your grandchildren. To provide for them, your will must specify that a deceased child’s share goes to his or her surviving children.

Another consideration is age. In New York, children cannot receive property through a will if they are under 18. Any inheritance will be held in trust by the probate court until the child reaches majority age. A way to avoid that situation is to use your will to create a trust and to name a trustee, rather than leaving it to the court to appoint one. A trust may be created for your children or grandchildren or both.

Note that a trustee is different than a guardian. Estate planning lawyers usually advise parents to have wills that name a guardian for minor children in the event of both parents’ deaths. However, that guardian does not have authority over the child’s inheritance, which is why a separate trusteeship is advisable.

Get answers to your estate planning questions by contacting the Law Office of Maurice J. Verrillo, P.C. in Rochester, New York. We are a family-focused, Christian law firm committed to advancing our clients’ best interests. To schedule your free consultation, call us at 585-563-1134 or contact us online.


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