Do I need a WILL for my minor child?

0 Comment(s) | Posted | by Andrew G. Foster |

This is part four in a six-part series entitled Dying Without A Will in North Carolina. Today I will be explaining what happens to minor children as heirs under the North Carolina Intestate Succession Act.

MINOR CHILDREN AND GUARDIANSHIPS

One issue that may not often be considered by those deciding whether to execute a Will is the ability to establish a trust for the benefit of any minor child that may survive the decedent. In North Carolina, a minor is a person who is under eighteen (18) years of age. Under North Carolina law, if a minor child stands to inherit from the decedent, that child cannot gain full control over the inheritance until he or she turns eighteen (18). Until such time, a guardian must be appointed by the court to exercise control over the inherited assets for the benefit of the minor.

While a guardianship is generally worthwhile and even a practical necessity, guardianship proceedings can be complex, lengthy, and costly. This is particularly the case if there is more than one party who is eligible to serve as the guardian for the minor child. If a parent dies without a Will and is survived by a minor child, that parent may be unwittingly bequeathing a messy legal situation to that child, and the other beneficiaries, that may take a great deal of time and money to resolve.

By contrast, if the decedent had executed a valid Will, he or she would have been able to include a provision in that Will for a minor’s trust. The creation of a minor’s trust allows all of the assets that would have passed to the minor to be held in trust, for the benefit of the minor, until such time as he or she is able to legally access that property. The trustee under a minor’s trust performs many of the same functions as a court-appointed guardian where there is no Will. Of course, the main difference is that the creation of the minor trust totally avoids the necessity of court proceedings and the potential for conflict that accompanies those proceedings. The ability to create a minor’s trust thus serves as another important reason to execute a Will during one’s lifetime.

Please look for part five in the six-part series entitled Dying Without A Will in North Carolina- Children’s Shares: Some Special Cases.

 

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