While it can be difficult to think about the possibility of dying before your children have reached adulthood, it’s even worse to think about leaving your children without your chosen guardian or proper financial support. All parents, but especially single parents, need to think about their children in their estate planning and need to leave specific instructions to ensure that their wishes are carried out if their minor children are left without a natural guardian.
Naming a Guardian in Your Will
Typically, if one parent dies while their children are under the age of the 18, the surviving parent becomes the legal guardian. However, if your children’s mother or father has already passed away, or if you currently have sole custody and believe the mother or father would be an unfit caregiver, you will need to name a legal guardian in your Last Will. You should actually consider naming a legal guardian in your will even if you are still with the mother or father of your children, in case both of you were to die before your children turned 18. Just make sure that you and your partner name the same guardian(s) in your wills.
When choosing a guardian (or co-guardians) for your children, think about who is best-suited to be a caregiver. For example, some people consider naming their own parents as guardians, but older grandparents may not be able to handle the physical demands of raising young children. You should also think about where your guardian lives, whether they share your personal values, and whether they will be able to financially support your children.
If you die before naming a guardian and there is no surviving parent to care for the children, the Florida court will appoint a guardian. Since you don’t want to risk the court appointing someone who you do not want to be your children’s guardians, it is essential to name a guardian in your Will sooner rather than later.
Naming Your Children as Beneficiaries
It is possible to leave money and property to minor children in Florida, but you will need to name a guardian ad litem (essentially a “property guardian”) who will manage the inheritance until the beneficiaries turn 18 (or an older age that you have specified). If you don’t name a guardian ad litem in your Will or Trust, the court will appoint one for you. In many cases, they will appoint the surviving parent. However, in some situations they may choose a different court-appointed guardian, so you should clearly state who you want to manage your children’s inheritance rather than just assuming you know who the court will name.
An alternative to leaving an inheritance and naming a guardian ad litem in a Will is to leave property in a Trust and appoint a trustee until your children come of age. The trustee is required to follow your written instructions and act in the best interest of the children when it comes to managing the trust. This might mean they use money in the trust to cover your children’s living expenses, health care, and education, for example.
The benefit of creating a Trust is that the assets in that Trust will not need to go through the often lengthy and costly probate process. However, Trusts can also be more complex, and the trustee will need to file annual income tax returns until the Trust is closed. If you’re unsure about the best choice for leaving an inheritance or naming a guardian for your children, talk to an estate attorney today.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.