Legal Question in Wills and Trusts in Illinois
I am trying to set up a simple will. I have 3 young children (minors) that I would like to protect. I plan to appoint my brother as the legal guardian in the event my wife and I were to pass away at the same time. I have tremendous confidence that my brother will care for the children emotionally and financially. We do not have a tremendous amount of assets or a complicated estate. I originally planned to make my brother and his wife the sole beneficiaries of the estate. My rationale is that he would be responsible and fair with the proceeds from the estate. The other "tool" I researched was a testamentary trust. I do not feel it is necessary to set up a testamentary trust for the children, since I trust my brother and feel he would protect them and ensure they received 100% of the estate proceeds. Is this a wise decision?
3 Answers from Attorneys
No. It would be a vey bad or at least a very risky decision. The reason it that there ae many things that could happen to your brother that are not under his control. To name a couple:
1. He could become diabled and a court would administer his assets for him only. Your children would be excluded. Your brother cannot tell the court to take care of your children because he is disabled.
2. Your brother could die. It all goes to his wife. Do you trust your in-laws as much as you trust your brother?
3. Your brother could get sued, divorced or go bankrupt. Since you left the money to him instead of your children, what should have been your children's inheritance is gone.
4. Etc.
In all of the above scenarios you have DISINHERITED your own children. A trust for your children is best. This is the way to make sure your children get it no matter what happens in the future to your brother.
Feel free to call for an appointment www.legacylaws.com.
No one can tell you what the "right" decision is, but if your primary interest is to provide for your children, it would seem that the living trust would serve your interests. Your brother would hold the estate in trust for your children, to only use it for their welfare, education, health, and maintenance (or whatever else you wanted). In leaving the money to your brother directly you are in effect "trusting" him to do the right thing, without a legal TRUST document in place. There are a myriad of other problems and unfortunate scenerios that could go wong with leaving the estate directly with him, not to mention tax consequences. Please feel free to contact our office if you wish to discuss this matter further, 773-684-5730.
This reply does not constitute an attorney-client relationship, and is specifically limited by the information provided. We are not tax attorneys.
In a situation such as the one you describe, I would highly recommend a testamentary trust, or perhaps even a living trust. Of course, without speaking with you, I do not know what the best option for you is. The only thing I am fairly certain about is that the option you presented (a simple will leaving everything to your brother and his wife) is not the right option.
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