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Minor Children: Will v. Trust

One of the many complications one needs to think about when planning for the distribution of their estate is minor children. It is vital that parents make plans for their children should should they die prematurely. Typically however, a minor, any one under 18, is not legally able to inherit your estate and manage his or her own money. Thus, if you are desiring to leave money to a minor there are several things to consider. First who should be given the power to care for you children and who will be responsible for managing these assets until your children are of legal age to inherit them.

There are two approaches typically (1) appointing a guardian for your minor children or (2) put your estate into a trust.

Probate & Guardianship

A lot of clients seem to be under the misconception that, if your will is valid, self-explanatory, and clear as to your intent, then it does not need to be probated. However, your Last Will and Testament is not effective until it goes through probate. It does not matter if it is clear and unambiguous! The deceased persons’ assets and liabilities cannot legally pass to the beneficiaries named in the will until after the Probate Court enters an Order that shows that the assets pass to the beneficiaries. The probate process can be very complicated and expensive in even the most straightforward of circumstances.

Minors Complicate This Even More

When money is left to a minor, the court will typically look to a provision regarding guardians in your will or if their is no provision, will themselves appoint a guardian to manage the minor’s inheritance on the child’s behalf. The guardian will be responsible for managing the money and using it for the child’s best interest. Failure to do so is a breach of fiduciary duty. Further, the guardian will have a tedious job of keeping an accounting of how the child’s inheritance has been distributed. When the minor turns 18, the minor typically inherits the entire remaining lump sum of their inheritance. Depending upon the size of the estate this could be a lot for a young person to manage at such a young age. Generally, the guardian will likely need both a lawyer and accountant to help manage the estate and these third parties fees will typically be paid from the minor’s assets.


Generally when people hear the word trusts, they think these are only for the elderly and wealthy individuals or that they are overly complex. This couldn’t be farther from the truth as trusts are super flexible and avoid the complicated probate process. Creating a trust requires less hoops to jump through and has clear advantages over appointing a guardian over your minor children.

All decisions about assets management is left to you as the parent. Unlike, the probate process described above, you can control the distribution of your estate to your minor children over a longer period of time and not have it automatically disperse when your minor child turns 18. This is an important consideration if you are afraid of your children’s financial decision making at such a young age. While the assets are held in the trust they will be protected from creditors and no court costs will be involved!

It’s never too early to begin estate planning or too late to check in and update your estate plan to accommodate for changes in our world and economy. No one knows what the future holds, but with a plan in place that provides for your own future needs and those of your loved ones, you can proceed with peace of mind. If you or a friend or loved one are considering estate planning for the first time, or are in need of updating an existing plan, please contact the attorney at Skillern Law Firm, PLLC by phone at 918-805-2511 or Feel free to also book an appointment with our firm using our Book an Appointment Online page!

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