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Estate Planning Involving Your Minor Children

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Planning for your minor children

If you have minor children, your estate plan will obviously revolve around their care and upbringing. You need to make sure you have the right people involved, and the right tools in place.

Guardianship and custody

Here’s your first planning question: who will take care of your child (or children) if you die before they are on their own? It’s unlikely to happen, of course — but it does happen. You owe it to your children to think through the best choices.

Of course, it one parent dies normally the other parent has the automatic ability to step in and handle child-raising duties. If you are a single parent, and even if you were granted sole custody over your child, the other parent will usually have the right to custody and control of your (and their) child.

There are exceptions to that rule, of course. Sometimes, too, a surviving parent is unable to take responsibility for child-raising. Rarely, but occasionally, both parents might die together. Even if your child has another parent, you need to identify who should be guardian if the unthinkable should happen.

If you fail to make this decision, will your minor children have to go to some state institution, or be unable to visit your family? Of course not. But your choice of guardian will have a much easier time dealing with the legalities if you have completed your estate planning documents.

Handling finances

Although your minor children’s other parent(s) will have priority for custody, the same is not true for finances. If you leave money for your minor children, you can control who will be responsible for managing those finances. That includes life insurance, retirement and financial accounts, your house and everything else. You get to decide who will be in charge of their inheritance, and for how long.

There is a bewildering range of choices. You could set up Uniform Transfers to Minors Act accounts for your minor children. Instead, you could name them directly as beneficiaries (but please don’t). Your best bet: create a trust for the benefit of your minor children, naming a suitable trustee and the terms of distribution. If you are like most people, you might hold back final distribution until age 25, or 30, or later. In the meantime, you could let the trustee make payments for health, education and support of your child or children.

Failure to plan

What happens if you don’t make a will or trust, or if you name your minor children directly as beneficiaries? A lot of expense, a loss of control, and too much involvement of lawyers and courts.

That’s one of the great ironies about estate planning for your minor children. If you try to save costs and lawyer contacts by doing it yourself, and particularly if you name your minor children as beneficiaries directly, you will end up costing extra fees.

That’s because the alternative to a trust for your minor children is usually a court-managed conservatorship (not every state uses the same term, so this advice is limited to Arizona parents). Not only is a conservatorship the most expensive alternative, but it also represents loss of control. Your minor children will receive their inheritances outright at age 18 — which most parents think is just too young. That will happen regardless of their circumstances on their 18th birthday.

Choosing a trustee

Choosing a guardian for your minor children is hard. Finding a suitable trustee is almost as hard.

Keep in mind that the two roles do not have to be filled by the same person. One close and loving family member might be great with the kids, and another a whiz at finances. You might have a professional in mind for the money management.

The same skills you should look for in a trustee will also serve your children well if you choose to set up a UTMA account. The person named to manage the money in a Uniform Transfer to Minors Act account is the “custodian,” but the role and duties are very similar. The big difference: a UTMA account has to be distributed to your children at age 21 — that’s better than 18, but usually not good enough.

When you meet with your estate planning attorney, you should have thought through who might make a good guardian and who should be trustee. But your attorney will help you sharpen those notions and give you a little clearer guidance; that’s what good lawyers do.

What about grandparents?

Perhaps you wonder how the rules are different for grandparents. There are a few ways that grandparent planning changes:

  1. Normally, a grandparent has little or no control over guardianship for the grandchildren.
  2. A grandparent is very likely to have amassed more financial resources, and so have even more concern about selecting a suitable trustee.
  3. In our experience, grandparents often extend the final distribution date for their grandchildren even farther than parents. That might be based on life experience, seeing how old an individual should be before they receive complete financial control.

Of course, many grandparents leave most or all of their estate to their children, counting on them to take care of their own children (the grandchildren). That’s not always the case, however. Besides, adult children sometimes actually die before their parents, leaving estate planning to favor the grandchildren.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.