A major life event, such as having a child, can prompt a person to seek out advice about setting up an estate plan. Other times, busy parents can put estate planning on their to-do list, but as we all know, sometimes life gets in the way and now their child is starting high school. Whatever the case, there are special considerations that go into estate planning when minor children are involved. While it can be an emotional matter to think about and discuss, knowing that you have a plan in place in case of the death of one or both parents will bring some peace of mind. Below are some major considerations and issues that arise when estate plans involve minor children.

Appointing a Guardian for a Minor Child

What does a guardian of a minor child do?

One important part of an estate plan with minor children is nominating the guardian. A guardian is someone who will take care of a minor child and has the rights to do things a parent would usually do. The position of guardian is different from the position of the individual who holds money on behalf of the child, but the same person can serve as both. The role of the person appointed to manage assets on behalf of a minor child is discussed in the second part of this blog below regarding trusts and custodial arrangements.

How do I nominate a guardian for my minor child? How is a guardian appointed?

An individual can formally nominate a guardian for their minor child as a part of their estate plan either in a will or a power of attorney. The process of appointing an individual as guardian is done through a court process brought after the death of the parents. The judge will give the parent’s wishes about the choice of the individual nominated to serve as guardian great weight when deciding whether to appoint such individual as guardian. However, in extreme cases, such nominated individual could be deemed unfit for the role and their appointment could be denied.

Who should I pick as guardian of my minor child?

The question of who a parent should pick as guardian of their minor child is commonly one of the more difficult issues to decide. My advice on that subject is to pick the individual that makes the most sense if a guardian was needed for that child in the next 5 years. Parents can also designate back up people to serve as guardians if the first choice is unable or unwilling to serve. It is recommended to review one’s estate planning documents about every 5 years especially regarding the individuals appointed to serve in the various roles in the estate plan (i.e. personal representative, power of attorney, guardian, etc.). If a parent wishes to pick a couple as co-guardians, such parent should consider what would happen if that couple split up.

Can I still nominate a guardian for my child if I am not in a relationship with the other parent?

A parent who is not in a relationship with the other parent of a mutual child can still nominate a guardian for a minor child in the event of the death of both parents. However, unlike a joint estate plan where both parents nominate the same person to serve as guardian, separated co-parents can have conflicting wishes. It will be up to a court to ultimately decide which nominated guardian will be in the best interests of the child to serve.

When one of the biological parents is problematic or no longer in the child’s life, the primary parent understandably may want to nominate a guardian to prevent the biological parent from having sole custody of the child. However, unless the other biological parent has had their parental rights terminated, they will be the default primary custodian of the child. It is not impossible to have a guardian appointed when the surviving biological parent is still living. However, the surviving biological parent has a fundamental right to parent and therefore terminating such a right is difficult and only made in relatively extreme circumstances. For more information about the rights of parents whose child is the subject of a minor guardianship, read the blog by Navigate Law Group’s minor guardianship attorney here:

https://navigatelawgroup.com/minor-guardianship-and-emergency-minor-guardianship-in-wa/.

Special Issues for Minor Child Beneficiaries of an Estate

What happens when a minor child inherits assets if I do not have a Will?

When a minor child is entitled to assets, and either the parent does not have an estate plan or does have an estate plan, but such estate plan does not adequately plan for minor beneficiaries, it can be a time-consuming and costly issue to deal with. A financial institution holding assets payable to a minor child, such as life insurance policy proceeds, may require a guardian to be appointed by the court to hold money on behalf of the minor child before any such proceeds can be distributed. This is the case even when there is a surviving parent of a minor child. Additionally, in decedent’s estates that are going through probate, a judge might require a guardian to be appointed before assets, such as proceeds of the sale of a house, can be distributed. However, the requirement for a guardianship action can be avoided if a will or other estate planning document plans for how the assets are to be held for a minor beneficiary. Also, with proper estate planning, the person leaving assets to a minor beneficiary can choose which person they wish to hold money on behalf of the minor child.

Do I need a trust for my minor child?

For estate plans with minor child beneficiaries, it is important that there be an arrangement for an individual (or professional institution) to hold and manage money on behalf of the minor child. Such an arrangement can be a formal trust or a custodial arrangement, which is discussed in the next section. A trust for minor children can be created in an individual’s main estate planning document, which will be either a will or a trust. Typically, such trust is set up and funded only when the circumstances in the estate plan are triggered, such as a parent (or both parents) dying with a child under a certain age. To create a trust for a minor child, the main estate planning document must appoint a trustee to hold money on behalf of the beneficiary and must state the terms of such trust, such as what age the trust terminates and in which situations assets should be distributed for the benefit of the beneficiary. A trust allows the most control over how assets are to be used for the minor child and can be in place for the lifetime of the beneficiary (but most commonly is not). A trust allows an individual to state with specificity how the trust assets should be used for the benefit of the child, such as ensuring a child has money to pay for a wedding, use for a down payment on a house, or start a business.

What is the difference between a trust and a custodianship?

The alternative to a formal trust arrangement is a custodianship under the Washington Uniform Transfers to Minors Act (UTMA). A short-hand description of a custodianship is trust-lite. Like a trustee, a custodian is appointed to manage assets on behalf of a minor child. Additionally, both types of arrangements can allow assets to be used for the benefit of the beneficiary for needs related to the health, education, maintenance, and welfare of the child. However, a custodianship under UTMA offers less control over how the money is managed on behalf of a beneficiary. Also, a custodianship only lasts until the beneficiary is age 25. A custodianship is less expensive to administer, so for smaller sums of money, it can be a good option.

Who should I pick to hold money on behalf of the minor child?

For any estate plan leaving assets to minor beneficiaries, it is important to nominate a responsible and trustworthy individual to the position of trustee/custodian. By accepting their role as trustee or custodian, the individual will serve as a fiduciary to the beneficiary of the assets under their control. This means that the trustee or custodian must act in the best interests of the beneficiary and therefore avoid any improper actions such as commingling personal funds or wasting assets. Commonly the person nominated to this role will need the guidance of an attorney and other professionals. Sometimes there is not a good candidate to serve in the role of trustee/custodian for a minor child. In these cases, a professional fiduciary could be a good option to consider.

Final Thoughts

Planning an estate involving minor children is more complex than planning an estate with responsible adult beneficiaries. Therefore, when minor children are involved, it is especially important to seek the advice of a qualified estate planning attorney to assist in the process. Not adequately planning for these matters can add several problems that can be expensive and time consuming to sort out for the surviving members of the decedent’s family. Estate planning attorneys at Navigate Law Group are available to help parents come up with an estate plan that fits their unique goals.

Our Estate Planning Attorneys

 

 Josi R. Howard

Josi R. Howard

Senior Attorney

Estate Planning | Estate & Trust Administration

Trevor J. Cartales

Trevor J. Cartales

Attorney/Co-Owner

​Business Law | Alcohol Law | Cannabis Law | Consumer Protection | Civil Litigation | Land Use Law | Entertainment Law | Personal Injury | Employment Law

Dainen N. Penta

Dainen N. Penta

Senior Attorney

James C. Howe

James C. Howe

Retired

​Estate Planning | Estate & Trust Administration | Business Law | ​Real Estate

Consult Today

Send a Message

Disclaimer

Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.