"child support" after death

[LizaLou1]

Soc,

I'm starting to think about my Will. I have joint legal and sole physical custody in AL.  I plan to leave all to my DH with the understanding (or written directions) he will hold assets in trust for DD until she graduates from college (she's 10). Or if DH dies, a financial custodian would hold the assets until she graduates from college.  Relatively speaking, it's not that much (rental property, stock, and life insurance).

My goal is to incentivize DD to complete college because her dad does not and would not support college goals.  I, alone, already bought the pre-paid college plan to make it easy.  I know it's her call, but.... there's a carrot waiting at the end.

1.  Is my estate legally responsible for child support to DD's Dad until she reaches the age of majority or can I just leave it to the judgement of DH or the financial custodian?  

Thanks

LizaLou

[socrateaser]

>Soc,
>
>I'm starting to think about my Will. I have joint legal and
>sole physical custody in AL.  I plan to leave all to my DH
>with the understanding (or written directions) he will hold
>assets in trust for DD until she graduates from college (she's
>10). Or if DH dies, a financial custodian would hold the
>assets until she graduates from college.  Relatively speaking,
>it's not that much (rental property, stock, and life
>insurance).
>
>My goal is to incentivize DD to complete college because her
>dad does not and would not support college goals.  I, alone,
>already bought the pre-paid college plan to make it easy.  I
>know it's her call, but.... there's a carrot waiting at the
>end.
>
>1.  Is my estate legally responsible for child support to DD's
>Dad until she reaches the age of majority or can I just leave
>it to the judgement of DH or the financial custodian?  

If you die, and the other parent obtains legal custody, then that parent can sue your estate/trustee/administrator/executor for child support based upon the income that your trust generates (just as if you were still alive). After all, the trust is for the benefit of the child. If you are concerned that there would be insufficient funds for college, if the court were to allow an invasion of the trust assets, rather than just the income, then you should consider a life insurance policy to give your trust some more "beef."

[Kitty C.]

I was always of the assumption that when an NCP died, then CS stopped.  Cnsidering that when a parent of a minor child dies, that child is ekigible for survivor benefits from Social Security.

So if an NCP dies, can a CP collect on both the SS 'and' the estate?  Seems pretty greedy to me!

[socrateaser]

>So if an NCP dies, can a CP collect on both the SS 'and' the
>estate?  Seems pretty greedy to me!

The SS benefits would offset the support amount, dollar for dollar. But, the guidelines remain, i.e., the court may order support based on the parent's actual income, which, as you are dead, would be 0$, or based on your earning capacity. So, if you have investments that pay income, even after you are dead, then that income can be used to impute a support obligation.

This, is, of course, one of things that can only occur in the fantasy world of family law, where all normal legal theories fall on deaf ears. After all, a person who is dead has no earning capacity, and their investments generally are vested in the beneficiaries/heirs.

So, if you die and your will creates a pour over trust for the benefit of the child, then that trust isn't actually your estate anymore. It's the child's trust. So, how can the court order child support from the child's property? Answer: because.

In short, don't ask why -- just assume that if there's money lying around and the other parent goes to court and ask's for it, "in the child's best interests," you can pretty much be certain that the court will award the money.

Unless, of course, if your trust is located in Grand Cayman, Isle of Nevis/St. Kitts, Burmuda, etc. But, most people can't afford such an option. If you can, then you need to speak with an asset protection attorney.