There are additional reasons why having a Will is a good idea. Wills generally include
a guardianship clause when parents have minor children. This clause allows the parents
to name the person they want to serve as guardian should the parents die while their
children are still minors. Without a Will, it may be unclear who should serve as guardian,
and could result in family discord and possibly litigation if more than one person wants
to serve in that role.
In addition, Wills can be drafted so that the decedent’s assets are directed into a
testamentary children’s trust. Once the assets are transferred into the testamentary
children’s trust, the assets (and income from those assets) can be held and managed
for the benefit of the children. Assets can then be distributed to the children once
they attain the age of majority (or at later ages if desired).
Finally, having a Will can avoid potential litigation. All Wills include a clause that
names the person or persons who will serve as personal representatives or
executors of the estate. Without a Will, any interested person can apply to be the
personal representative or executor. Although an order of priority for appointment
as personal representative is provided by state statute, it is entirely possible for a
group of individuals (i.e., siblings) to have equal priority for appointment.
In most cases, whenever there are minor children, probate assets, or a history of
family discord, a Will is a good idea.