Some people (and even some lawyers) question whether a person can make a Will or an Estate and Incapacity Plan providing for their children before they have any children.
It is perfectly possible, and perfectly simple to do this.
One simply makes provision for the children, just as you would do if the children were already born. The fact that you cannot list the names of the children in the Will or the Trust yet, because they have not yet come along, makes no difference. Wills and Trusts usually make provision for all of a person’s children, including children who are born or adopted after the estate plan is made. Since families often make Wills and Estate and Incapacity Plans, including trusts, before their family is completed, even if they already have one or more children, providing for the as yet unborn or even the not yet conceived children is not a problem.
As in any situation where there are young children, you will want to lay out who would be the guardians for the children if both parents were to pass away, and you will want to provide how to handle the money that will flow to the children (probably with a living trust that continues after the parents pass on, or with a testamentary trust incorporated into the Wills of the parents, which would spring into effect if both parents were to die).
As with any other Will or Trust, you can also provide for what happens if no children come along. Even in a situation where there are already existing children, a person should lay out carefully where they want their money and other assets would go if the whole family were to die in a car crash or other disaster. Something similar can be done in a Will or a Trust that is written in the hope that there will eventually be children, so that the assets would still go to the people or entities the person wants to have these things if, for some reason, the planned for children never come along.
Steven A. Heinrich
Divorce & Custody
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