During this time of the Coronavirus, I have been writing a lot of Last Will and Testaments, Power of Attorneys, and Living Wills for clients of all ages as they want to make sure that they have their affairs in order.
One issue that keeps coming up in discussion with clients pertains to the spouses of the Testator/ Testatrix children and grandchildren. The Testator/ Testatrix, in drafting their Wills and other important testamentary documentation, must think hard and long on the issue of how they want to deal with the spouses of their children. Many of my clients want to make sure that the Estate assets go to the grandchildren in the event that a child of the Testator/Testatrix predeceases the spouse. In such a case, the surviving spouse of their children ( in-law) will by law be the sole Guardian of the grandchild. It makes sense that the assert be held in Trust by said Guardian until such time that the grandchild becomes of age to receive their inheritance. It is also an issue to be reviewed and determined by a Testator /Testatrix when drafting their Wills as to what age they want the funds to be released to the grandchild in a scenario as set forth above. Many clients of mine choose to have the funds to be released to the grandchildren on a sliding scale as they attain certain age milestones. Until that time, the Guardian of the grandchild has discretion to utilize the asset toward the general welfare, maintenance, and education of the grandchild.
This is the important reason why your testamentary documentation should be re examined ap[proximately every 5 years Many times, a Testator, Testatrix, when drafting their Will, want to include the spouse of their child ( inlaw) in the Will as a sign of good faith, love, and general family support., However, over time, things change. I have been involved in multiple cases pertaining to the distribution of Estate assets wherein the spouse of the child ( in law) as an Agent in a Power of Attorney and as a Health Care representative in a Living Will.
It is totally up to the Testator/Testatrix to determine who they want to name in their testamentary documentation . There is no right or wrong way to name in their testamentary documents. There is nor right or wrong way to proceed on this issue. However, one must be careful during the preparation of this documentation to keep in mind that things change over time. Again, the testamentary documents discussed above, can always be modified in the future as well.