Planning For Minor Children
What Happens to Your Children If You Die Without a Plan?
Florida law does not automatically place your children with the family members you would choose. If both parents die without naming a guardian, the Department of Children and Families can take temporary custody while the court sorts out who should serve. In practice, this often means temporary placement decisions are made quickly, before the full family picture is understood. The court makes that decision based on who petitions and evidence presented — not on private conversations you may have had with friends or family. A properly executed will designating a guardian of the person is your one opportunity to put your wishes on the record. It does not guarantee the outcome, but it gives the court a clear statement of your intent and, in most cases, the court will follow it. Without one, the decision is entirely out of your hands.
What Is the Difference Between a Guardian of the Person and a Guardian of the Property?
These are two separate legal roles in Florida, and they do not have to be the same person. The guardian of the person is responsible for your child’s day-to-day care — where they live, their education, and medical decisions. The guardian of the property manages the child’s assets and is supervised by the court, which requires annual accountings, a bond or restricted depository, and court approval before spending funds. Many parents assume a relative can handle a child’s inherited money informally, but under Chapter 744 a guardianship of the property is required any time a minor is entitled to receive more than $15,000. A properly structured trust can eliminate the need for that guardianship entirely.
Why Is Leaving Property to a Minor in a Trust Better Than a Court Guardianship?
A guardianship of a minor’s property terminates automatically when the child turns 18, at which point the remaining funds are distributed outright, regardless of maturity. During the guardianship, the fiduciary must seek court approval for many expenditures and report annually — adding cost and delay even for obvious needs like tutoring, activities, or uncovered medical care. A trust avoids those burdens. The trustee manages and distributes assets under the terms you set — commonly for health, education, maintenance, and support — without annual court filings or judicial approval for routine expenses. You also control when your child gains unrestricted access, and many parents choose staggered distributions at ages 25, 30, and 35. In most cases, a trust is less burdensome and more flexible than a guardianship, and more of the inheritance stays available for your child.
What Should a Minor’s Trust Say About Distribution?
Most parents use a discretionary trust with a health, education, maintenance, and support (HEMS) standard for distributions until the child reaches a specified age. Beyond that baseline, your family dynamics drive the design. If you have a child who struggles with money, you can further limit withdrawals, keep the trust fully discretionary, or empower the trustee to withhold or delay distributions. If you want to encourage education or specific milestones, you can build in incentive provisions tied to graduation, professional licenses, or other achievements. Each child can have a separate share with different terms if their needs differ, and the trust can receive real estate, retirement benefits, and life insurance — coordinated with your beneficiary designations so assets flow in without going through probate.
Who Should Serve as Trustee for Your Children’s Trust?
The person you name as guardian of the person and the person you name as trustee do not have to be the same, and often should not be. The guardian raises your children. The trustee manages their inheritance, invests it, and makes distribution decisions under the trust’s terms. These roles require different skills, and the relative best equipped to provide daily care may not be the person best suited to manage investments or prepare annual accountings. Naming a financially capable family member or a corporate trustee to handle the money — with a separate guardian focused on the children — creates a natural check on how funds are used. When one person holds both roles, there is effectively no independent oversight on distributions. A board-certified estate planning attorney will help you select the right people for each role before documents are finalized.
What About Life Insurance and Retirement Accounts?
Minor children cannot directly receive large life insurance proceeds or retirement account distributions. If you name a minor as beneficiary on a policy or IRA, the company will require a court-appointed guardian of the property before releasing funds above $15,000 — triggering the same guardianship of the property process described above. The better solution is to name a trust for your children’s benefit as the beneficiary, with a trustee ready to receive and manage the funds under your terms. This requires coordinating your beneficiary designations with your estate plan instead of treating them as stand-alone forms. David Shulman holds an LL.M. in Taxation and routinely handles the retirement account and beneficiary designation analysis that many estate planning attorneys do not.
What If My Child Has a Disability?
A standard minor’s trust is usually the wrong structure for a child with a disability who receives, or may receive, SSI, Medicaid, or other means-tested benefits. An outright inheritance — or even a typical discretionary trust without special needs language — can disrupt or terminate those programs. The correct structure is a third-party special needs trust, which holds assets for the child’s benefit without being counted as a resource for benefit eligibility. For families with a child with a disability, the planning for minor children conversation and the special needs planning conversation are the same conversation, and both need to be addressed in a single coordinated plan. We handle both.
If you have minor children and no plan in place, or if your existing documents do not include a trust for their benefit, call (954) 839-8705 or use the form below. David Shulman is Board Certified by the Florida Bar in Wills, Trusts & Estates. We handle this planning every day, including complex family situations.