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Guardianship

One of the most important functions of a will for a parent with a minor child is to name a guardian for the child’s “person” until the child’s 18th birthday. As long as a parent whose parental rights have not been terminated survives, that parent is the guardian of the child upon the death of the custodial parent. However, if no parent survives and you do not appoint an alternate guardian for your minor child in a will, the court establishes a guardianship and appoints a guardian. That guardian may not be a person you would have chosen, and may not share your values and attitudes about how your children should be raised.

Another critically important function of a will for a parent with a minor child is to name a guardian or trustee or custodian for the child’s “property” and to give that person the power to spend assets for the benefit of the child’s health, education, and maintenance. If a minor child or grandchild inherits property without a will or trust containing special instructions to the executor or trustee, an expensive and cumbersome court-supervised guardianship of property will probably be necessary. Court accountings must be filed with the Commissioner of Accounts each year, and fees paid. The guardian must seek permission from the Commissioner of Accounts (for a small expenditure) or the Court (for a larger expenditure) to spend any funds on behalf of the minor child. Further restrictions on the use of the money are applied if the guardian is a parent with the duty of support. The guardianship must end and the funds must be turned over to the child when the child becomes 18 years old, regardless of whether the child is mature enough to handle the funds. If the child is receiving SSI or Medicaid benefits, the inheritance can disqualify the child from receiving those benefits. A properly planned will or revocable living trust can prevent these issues from becoming a problem.

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