Gainesville elder and special needs attorney talks about what happens when there is no will or estate plan — do the children of the deceased automatically get everything?
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“The really critical time period to have an estate plan is, first of all, if you have children. It’s very important for you and your spouse, or even if you’re divorced, to have some agreement as far as who would be the guardian or take care of your children after you die. Also, it’s really important that when you have kids, that you create some kind of way for them to access your funds after your death.
We’ve talked about guardianships, and what happens if you die without a will, and you have children, is that your assets that go to your kids will go instead into a guardianship. Then, you have to file something with the court. The judge ends up being the person who is the gatekeeper for those monies.
If your sister is the one taking care of them, and your sister wants to spend money to send that child to camp, they have to go knock on the courthouse door and ask the judge for money. Then the judge will decide, ‘Well, yes, I think that’s a good idea or no, I don’t think that’s a good idea.’ It costs a lot of money because you have to have an attorney represent you in that way. We think having an estate plan that would include some kind of testamentary trust, either inside of a will or just a regular stand-alone trust, provides a way for us to avoid the process of guardianship, and it allows you to decide who you want to be the gatekeeper, rather than the court.
If you say, ‘Okay, my sister’s going to be the one who takes care of my children. My brother, however, is going to be the trustee of my testamentary trust who decides when the money can be used for summer camp and helps take care of those children.’”