A 2025 estate-planning study estimates that approximately three-fourths of Americans do not have a basic will. Many of these people also have minor children, which underscores a major misunderstanding about estate plans: wills aren’t just about handling complex financial assets.
One of the most important functions of an estate plan for parents of minor children is the ability to provide specific guidance about how their children will be cared for and who will care for them in case something happens to the parents.
To account for all emergency contingencies concerning you and your children, your estate plan should form a comprehensive safety net that addresses your children’s needs in case the unthinkable should occur.
3 Tools You Need If You Have Minor Children
As parents, we instinctively strive to shield our children from harm and set them up for success.
While your death or incapacity (inability to manage your affairs) from a sudden illness or accident is likely a situation you would rather not think about, preparing for worst-case scenarios will give you a voice in how your children are cared for, rather than leaving that important decision to others, especially to strangers (i.e., the courts).
Why don’t more parents have estate plans? Americans cite procrastination as the number one reason. To safeguard your children’s future, prioritize your estate plan using these three estate planning tools:
Last Will and Testament
A last will and testament (or simply a “will”) is the cornerstone of any estate plan, but it takes on added importance when you have minor children. Your will outlines your wishes regarding the distribution of your money and property after your death. It also allows you to do the following:
- Name a guardian. A guardian is the person you want to raise your children if you and the other legal parent are deceased. The most common choice of guardian is a close family member, such as grandparents or siblings, or a close family friend.
- Establish an inheritance for your children. Because minors cannot directly inherit money and property over a certain limit set by state law, there needs to be a way to handle their inheritance for them until they reach legal adulthood. Your will can include a testamentary trust to set aside money and property for your minor children. The terms of the testamentary trust allow you to name a trustee to oversee the inheritance. Another benefit of a trust is that you can determine at what ages the children receive their inheritance and how they will receive it.
- Name a personal representative. A personal representative is the person you designate to carry out the instructions in your will, including managing your estate and distributing your money and property. They might work closely with the guardian and the trustee to ensure that your instructions are executed smoothly and according to plan. The same person may serve in more than one role in your estate plan (e.g., guardian and trustee, guardian and personal representative).
Power of Attorney for Minors
A power of attorney for minors, sometimes called a designation of standby guardian or something similar, depending on the state, is a legal document that empowers a chosen individual (your agent or attorney-in-fact) to act for your minor child on your behalf. This person steps in to make decisions regarding your child’s care if you become incapacitated or unavailable.
The power of attorney can grant the agent broad authority to handle various aspects of your child’s life, including the following:
- Health care: Making medical decisions, consenting to treatments, and accessing medical records
- Education: Enrolling your child in school, making educational choices, and attending school meetings
- Finances: Managing your child’s finances, including accessing bank accounts, applying for benefits, and handling their inheritance
- Legal matters: Representing your child’s legal interests in matters such as a custody dispute, personal injury claim, or inheritance matter
- Daily care: Meeting your child’s food, shelter, clothing, and other basic needs
Although the power of attorney grants the agent significant authority, there are limits to what it permits. The agent cannot consent to the child’s marriage or adoption. In addition, many state laws impose expiration dates on these documents (e.g., six months, one year), so it is important to review and update them regularly to ensure that they remain valid.
Revocable Living Trust
Parents of minor children might also consider a revocable living trust that holds their accounts and property during their lifetime and distributes them after their death.
You (the parent) maintain control of the accounts and property in the trust while you are alive as the current trustee. You can change the trust’s terms as needed because you are the trustmaker, and this type of trust is revocable. A revocable living trust can help avoid probate and give your children faster access to the resources they need. You can also specify how and when your children receive their inheritance, name a successor trustee to continue management of the trust if you suffer incapacity, and provide financial support for the guardian, further synergizing your estate plan.
How These Tools Work Together – and What Can Happen If You Do Not Plan
These three estate planning tools are not interchangeable; they are complementary and designed to work together to address immediate and long-term needs in a range of potential scenarios.
Imagine a scenario where both parents are in a car accident. One parent dies, and the other is severely injured and temporarily incapacitated. The agent named in the temporary power of attorney or delegation of standby guardian immediately steps in to temporarily care for the children.
If the injured parent passes away, the designated guardian (who may be the same person as the agent under the temporary power of attorney) named in the will or standalone document can provide the children with a stable, permanent home. The will can be structured so that the children’s inheritance is managed through a trust that specifies how and when their inheritance should be spent and distributed.
Failure to have any one of these estate planning tools can lead to complications and unintended consequences for your minor children. For example:
- A missing temporary power of attorney could lead to delays in, or the inability to, make emergency decisions about medical treatment.
- A missing guardian nomination document could lead to a court choosing a guardian you would not have chosen. Ostensibly, the choice a judge makes will be in the child’s best interest, but do they really know your child and family dynamics well enough to make this choice?
- A missing will can also lead to a court appointing a guardian who is someone other than your first choice. In addition, your children may not receive the inheritance you intended in the way that you intended, and you lose the ability to specify how your money and property are used for their benefit. Further, they will end up getting what is left of their inheritance outright when they reach the age of majority (18 or 21, depending on the state).
Other Planning Tools and Tips for Parents
Parents should understand that they can only nominate a guardian for their child, not legally appoint one; the court has the final authority to decide, though it gives significant weight to the parents’ nomination.
If there is evidence that your chosen guardian is unfit or unable to provide proper care, the court may appoint a different guardian in the child’s best interest, even if it goes against your wishes. There is also the chance that a family member could contest your guardianship choice or your first choice of guardian is unavailable.
These outcomes are unlikely, but since they could undermine your wishes, there are additional steps you can take to minimize the risk and strengthen your case.
- In a separate letter, sometimes referred to as a letter of intent, clearly state your choice of guardian and provide a detailed explanation of why you believe this person is the best fit. Speak to their qualifications, relationship with your children, and ability to provide a stable and loving home.
- Name alternative guardians in case your first choice is unable or unwilling to serve.
- To prevent misunderstandings and reduce the likelihood of a challenge, have open and honest conversations with family members about your guardianship decision. Explain your reasoning and address any questions or concerns they may have.
- Have your will or separate guardian nomination form properly executed according to your state’s laws. To be legally binding, they may need to be witnessed and notarized, and meet other requirements.
Fitting Together the Pieces of Your Estate Plan
Each part of an estate plan has a role to play, but they work best when considered as parts of a larger plan that addresses big issues such as the well-being of your minor children.
A will, temporary power of attorney, and a standalone guardian document are not interchangeable; they are complementary. Incorporating all three into your plan, alongside other strategies such as a revocable living trust and a letter of intent, addresses the immediate and long-term needs of your minor children in any eventuality.
If you have minor children, estate planning is a necessity. Do not leave your children’s future to chance. Give us a call at 651-738-3433 to create a multipoint plan that protects you and your children.