Frequently Asked Questions about
Estate Planning, Wills, Trusts, and Probate

• Do we need a will to nominate guardians for our children?

All parents worry about what would happen to their minor children if both parents died. This concern draws many relatively young people to lawyers’ offices to start planning their estates.

If one parent dies or becomes incapacitated, then usually the surviving parent will have sole custody of the children, and control over their property (if any), unless special circumstances exist. If both parents die, then usually there must be a court action to appoint a guardian for the children and for the children’s property.

In such a proceeding, a Virginia court will always look first to the desires of the parents as expressed in their wills. By statute, the court must appoint as guardian the person nominated in a will, unless this would not be in the best interests of the child. No other document or expression of preference can speak with the authority that Virginia law invests in a properly drawn and executed will.

You must carefully consider who would be the appropriate guardian of your children. Consider many options: Will this person be able to care for your children until they are 18? Will this person see that your children are educated as you would wish, and raised in your family's religious tradition? Would your children have to move away from Northern Virginia to live with this person? Even if one person is suitable, might there be an even better choice?

Be sure to ask your guardian nominee if he or she would agree to care for your children if something happened to both parents. Don’t risk putting someone in the awkward position of first learning of your nomination after you die. Even the most supportive and caring friend or relative may have good reasons for declining to take on the burden of caring for more children.

You also should nominate alternate choices for guardians, in case your first nominee or nominees are later unable to assume responsibility for your children or their property. And you should write a letter for your potential guardians, setting out in as much detail as you wish how you would like for your children to be brought up. Hopefully, that letter will never have to be delivered, but you should make arrangements to deliver it to the guardians in the event of your death, and update it regularly.

Naming a trustee in addition to a guardian:

Is the best person to appoint as “guardian of the persons” of your minor children likely to be the best person to appoint as the caretaker of the money and property your minor children would inherit from you if you were to die before they reached adulthood?

Usually, the answer is no. It is almost always the most prudent course to name a different, trusted friend or relative as trustee to hold your children's inheritance in trust and to pay or apply it for their benefit -- that is, for their education, medical care, support, and other needs -- until they are old enough to manage it themselves. If such money and property is likely to be substantial in amount -- say, $100,000 or more -- it is prudent to name a co-trustee, such as a financial planner or CPA for smaller estates or a bank trust department for larger ones, to advise your individual trustee on the management and conservation of your minor children's inherited property.

We usually include a contingent child’s trust in every will and living trust, even for clients whose children are grown, or who are leaving their estate to relatives and friends all of whom are adults. Why? Because adult beneficiaries may predecease the testator or die very shortly after him, and may themselves leave young children or other young relatives who then inherit the share of the estate intended for their parent.

(Besides assuring competent money and property management, properly-designed trusts can also provide a substantial degree of lifelong protection against your children's assets being taken by creditors, or by fraudsmen, or by disgruntled spouses in divorce actions. Other pages on this site deal with those issues in more detail.)

Special issues for divorced and remarried parents:

After divorce, if either parent dies, then under Virginia law the surviving parent normally will have full custody of the children (even if the deceased parent had primary custody) unless a court finds that the survivor is not a “fit and proper person” to have custody. If one parent believes that the other should not have sole custody, he should plan in advance. Other family members might need to be prepared to petition the court for a guardianship in the event of the custodial parent's death.

In addition, if a deceased parent fails to name a trustee or “guardian of the estate” for any property inherited by a child, the surviving parent will normally be appointed to manage and control the money. Since many marriages fail because spouses do not agree about financial matters, many divorced parents prefer to leave the child's property to him in a trust managed by a trusted third person, working with an institutional trustee (such as a bank trust department) if the estate is fairly substantial.

If you were to die “intestate” (that is, without a valid will) leaving one or more children who are not also your surviving spouse’s descendants (most likely, children from your prior marriage – whether or not they live with you, and whether or not they are adults or minors), under Virginia law all of your children (and grandchildren, if any) would take two-thirds of your estate at death, while your surviving spouse would take only one-third – plus, your surviving spouse would be required to apply to the court to be appointed as a guardian of any property left to any minor children of you and your spouse.

(Gentlemen: if there is any likelihood that you might have living descendants whom you and/or your spouse don't know about, please reread the preceding paragraph carefully.)

Stop and think for a moment about how this statutory “default” plan would affect your family. If the outcome is not acceptable to you, then you need a properly drawn Virginia will or living trust.

“My hair stands on end at the cost and charges of these boys. Why was I ever a father! Why was my father ever a father!” –Charles Dickens