Minor children in the will2Yj85dDpK9y2
If you are young enough to have children (Minor children) who have not left home, the most important consideration in making a will is likely your concern for the children. This concern should apply both to how children are to be raised if they are orphaned, and how the combined property you may leave should be protected, invested and spent for their benefit.
As a parent, you have a legal right to custody of your children. That is the natural law and state law which allows you to raise your children and to make decisions on their behalf. If one spouse dies, the survivor has the same right. If both you and your spouse die, however, there is no one who automatically receives a similar right. As parents, you have the opportunity to designate someone to act as guardian of the person and property of your children. In New York, a guardian is appointed by the Surrogate’s Court, which is the same court which administers estates. Unless it can be shown that the appointment of your designated guardian would be contrary to the welfare of the child, your choice will be followed by the court. All children in the family could have the same guardian, or different ones could be designated for each. Usually, the same person is chosen, and is designated as the guardian of the person and of the property of the child.
Minor children in the will
The guardian of the person is the substitute parent who would take the child into his or her home. The guardian of the property would be in charge of the administration of any funds owned outright by the child. It is possible that one person could be designated as guardian of the person and another as guardian of the property.
A guardian’s authority continues on only until the child reaches age 18. At that point, the guardian’s legal authority ends, but the child may of course continue living in the guardian’s home if that is agreeable to both. Any property held by the guardian for the child must be released to the child at age 18, which is a problem in the eyes of most parents. It is for this reason, among others, that good estate planning calls for the use of trusts to handle funds for minor children, rather than depending upon guardianship. If the plan is properly structured, there should be no funds coming into the hands of the guardian other than that amount needed for the actual expenses of raising the child. Another problem of a guardian handling the child’s property is that the court subjects the guardian to very strict controls. In most instances, nothing can be paid from the child’s funds without the court approving the expenditure. Getting the permission can be a very cumbersome and expensive process. Worse, the decision on what to spend and when to spend it is placed with a stranger (the judge) rather than a family member or other trustee of your choosing.
As a result, our estate planning objective is usually to prevent any property from being placed into the hands of the guardian of the property of an infant child.