[The following letter written to me illustrates the importance of designating who you want to raise your minor children.]


Dear Marilyn,
My sister-in-law Mary recently died and her husband’s mother is raising their three children. She is raising these children in a different religion and is very, very strict with them. I do admit that the children are doing well in school though they tell me they are unhappy living there. All of them will be reaching eighteen over the next three years and will be inheriting a lot. I believe the children will squander it—if nothing else in protest to their recent upbringing—rather than save it for their education as their parents would have wished. Is there anything that we can do? —Vivian, Encinitas


Dear Vivian,
My condolences. This is a problem that can occur when young families do not do Estate Planning. It is very important that as a minimum everyone should do a Will and “Nomination of Guardian”—that is who they would like to have raising their children if anything ever happened to them. This is certainly better than friends and relatives of the deceased gathering together and arguing about it and finally having the court decide who should be appointed.

This document can be shown to the court who will certainly award custody to these persons unless it is shown that they are incompetent to serve in this capacity.

The court will always look to “the best interest of children” and if you think that it would serve the children’s best interest you may wish to petition for custody. I must tell you that it might be hard to prevail if they are doing well in school and are about to become of legal age.

As far as restricting their inheritance, nothing at all can be done, as they have an absolute legal right to inherit on their 18th birthday unless something was done earlier. If the parents had created a Living Trust for their children while they were alive or even a Trust within their will, then it would have been easy for them to have delayed distributions of the Principal or income to the children until perhaps age 25. Very often a Trust document will provide that the Trustee can provide for the education and reasonable living expenses of the primary beneficiaries from age 18 until 25.

Since you can’t do anything legally, you might wish to talk with the children about their parents wishes for their education.