Planning Care for a Minor Child

If you have children, there is another vital reason to have an established estate plan. In addition to planning the use of your assets during incapacitation, or distribution of your assets following death, a will can be a critical tool to plan who will care for your children and how they can be cared for. Two issues to consider when planning care for a minor child: first, who will oversee the physical well-being of your child; and second, how will your child be financially provided for.

To oversee the physical well-being of your child, a guardian can be designated through testamentary appointment. A will may designate only one guardian, but it is generally advisable to consider designating secondary and even tertiary guardians in the event that the designated guardian predeceases you. If a child is under fourteen years of age when the testator passes, the designation in the will is given effect when the guardian files acceptance in the probate court. If a child is between fourteen and eighteen years of age, the child has a right to assert his preference as to who his guardian should be.  If a will does not specify a guardian, or a specified guardian does not accept the designation, the court will intercede and appoint a guardian for the minor.

To plan for a minor’s financial well-being, a testator can nominate a conservator who holds, as a fiduciary, the minor’s share of the estate’s assets until the minor reaches the age of eighteen. The conservator acts in a capacity comparable to that of a trustee in that the conservator has investment powers similar to a trustee’s with the accompanying duties of a fiduciary. Another tool to plan for a minor’s financial well-being is to create a testamentary trust on behalf of the child. A trust will work similar to a conservatorship in that there will be a trustee with fiduciary duties to the minor authorized to hold in trust the minor’s share of the probate estate. One benefit of a trust over a conservatorship is that the trust does not have to end when the minor turns eighteen. If you do not want you child to be able to take his whole share of the estate when eighteen, a testamentary trust may be preferable as you can dictate the criterion under which the trustee will decide when your child is prepared to receive his inheritance.


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