Planning for Minor Children

Serving Clients in New York City and the New York Metropolitan Area

Do you have a minor child, children or grandchildren? If so, then they are your most valuable treasure(s). So, what arrangements have you made for their care should something happen to you?

As with your own personal, health care and financial decisions, wouldn’t you rather select the person(s) who will raise your child(ren) in your absence, rather than let a probate judge decide? Proper planning will allow you to avoid this difficult and impersonal situation.

There are two critical choices commonly faced by parents of minor children. First, who will be the primary caregiver of minor children should a parent be unable to do so, and second, who will manage their inheritance, funds or assets and provide their minor children the support they need?

If you are married, separated, divorced, or never married to the surviving biological parent of your shared minor children, then that surviving parent will continue to be their guardian, unless the court finds that they are unfit to do so. Nevertheless, you will want to make prudent alternate choices regarding their guardianship should the situation arise, or the surviving parent cannot take the responsibility.

While every family situation is different, here are some practical things to consider when selecting guardians for your minor child(ren) which will avoid conflict or differing approaches to their care:

• Select guardians who share your values and life priorities and already have an established positive relationship with your minor child(ren). Often grandparents fit this role, but age and health should be considered especially if the minors are very young.
• When selecting a married family member, consider choosing the family member only and not the couple, in case your family member predeceases or divorces their current spouse.
• Make sure your legal plans provide for the compensation of the guardians, or at least that the inheritance is available to them to cover all legitimate expenses incurred when rearing your minor child(ren); and
• Obtain permission of the selected guardians before appointing them in your legal documents.

Great care must be taken when selecting the individual who will administer and distribute your child(ren)’s inheritance or trust funds. This individual is seen as a fiduciary, which is a person or institution legally responsible for the financial assets of the child. Fiduciaries are held to the highest standards of care and loyalty in performing this role.

Who will you appoint as this fiduciary to manage an inheritance left upon your death? What if you and the other biological parent are divorced or were never married? Even though the surviving parent may rear your minor child(ren) to adulthood, would you also want them to control the inheritance you leave behind? Or would you prefer a person of your choosing administer and distribute your money for the benefit of your child(ren) until they are old enough to manage it on their own. You might want to set a certain age or condition to trigger the distribution to that child or grandchild.

There are three options when it comes to selecting financial fiduciaries, each with its own advantages and disadvantages.

The first, and most common, option is appointing a trusted family member or friend to this position. They likely know the needs and strengths of your dependent child(ren), and, as interested parties with a personal relationship with you and your children may waive the full commission set by law. This role may require that they set limits on a young person’s spending to preserve the inherited funds for education or housing. Your appointed financial guardian or trustee also may have to say no to the surviving caretaker parent as well. This role may require delicacy and skill.

The second option is for you to appoint a professional fiduciary, such as an institution (e.g., a trust company) or an individual (e.g., your CPA). The positives and negatives are the opposite of the first option, in that they may not know your child(ren) well or be familiar with their individual needs. They may be impersonal in their approach to their decision. But, as professionals, they will give the financial management their full attention and have the skill to be sure the funds are safely invested and used appropriately.  Professionals also have monitoring built in to protect your assets.

A third option is combining the first two options for the best of both worlds. In short, the family/friend appointee(s) knows the strengths and weakness, will tell your minor child(ren) no when they ask for a Ferrari, but will not be bogged down with investments, accounting, tax and legal details. Instead, the professional fiduciary shoulders (and is rightfully compensated for) the day-to-day management of the inheritance and can be pressed into service to explain the financial reason for withholding trust distributions.

As you can see, the selection of guardians and fiduciaries is essential for the physical and financial well-being of your surviving minor children or grandchildren. Few decisions in life are more important. Only you can make these decisions through proper advanced planning.

What to Consider When Planning for Minor Children:

• Discussion of trusts for minor(s) and the appropriate age to terminate the trusts
• Educational funding/special savings plans (529)
• Special needs planning for children with disabilities
• Deciding where and with whom your children should live
• Arranging to pay for their support and maintenance and educational and recreational activities

Contact Grimaldi Yeung Law Group to make an appointment to discuss these practices.