In last month’s column, I discussed ways to provide for minor beneficiaries through use of trusts or transfers under Florida’s Uniform Transfers to Minors Act. By doing so, you keep the money or other property out of a court supervised guardianship proceeding and allow the money and property to be used without need of court intervention. You also delay final distribution of the money and property beyond age 18, allowing the recipient time to gain the experience, maturity, and judgment to manage that money and property more wisely. But even though you structured the financial aspects of gifts to your minor children to keep the money and property out of guardianship, what actually happens to minor children when both parents pass at the same time, or on the death of the final parent?
Florida law requires a guardian to be appointed for minor children where both parents are deceased (the scope of this column is limited to circumstances where there is no surviving parent). A guardianship for a minor child is initiated by filing a petition with the appropriate court. The petition is generally filed by an “interested person” and recites who should be appointed, and why. The court basically applies some statutory criteria and reviews filed evidence to determine if the person requesting appointment as guardian is qualified. But what if the person seeking to be appointed as guardian is not the person the parents would want to have custody of their child(ren) or to care for them?
In determining who should be appointed as guardian of a minor, a court will consider and generally give preference to a person designated by both parents in a filed preneed guardian designation or designated by the surviving parent in his or her Last Will. By taking proactive steps now to name and designate a preference for the person(s) to be appointed as guardian for minor children, parents control who provides and cares for their children. If the person designated in a Last Will or preneed designation is also the person put in charge of the money and other property passing to the minor child, whether as trustee or custodian, the parents have now put both the physical and financial care of the children in a trusted individual and have avoided leaving these decisions to chance.
Planning for the protection of one’s minor children through guardian designations in a Last Will or preneed designation should factor into a properly structured estate plan the same as providing for a minor child’s financial care. Taking the steps now to implement “your plan” for securing both the financial and physical care of minor children avoids the possibility of your children becoming subject to the plan of someone else.
If you need assistance developing an estate plan which involves minor children, or for assistance with implementing any of your other estate planning objectives, at Bob Bible Law we have the knowledge and over 30 years’ experience to help you navigate these decisions.