Articles

PLANNING FOR THE CARE OF MINOR CHILDREN

The death of a parent may trigger the need for a person to care for the person and/or property of a minor child.  By developing a detailed estate plan, a parent can indicate a preference of who should care for his or her child(ren) in the event of an unforeseen tragedy, as well as set forth important details with regard to how assets held in trust on behalf of a child should be administered for the child’s benefit.  Trust instruments, whether created during one’s lifetime or through a Last Will and Testament (the “Will”), can include detailed instructions, such as the age or ages at which all or a certain part of the assets being held for the child’s benefit should be distributed to him or her and also for what purposes, such as support, maintenance, education, and health, distributions may be made by the trustee to or on behalf of such child prior to him or her reaching the designated distribution age or ages.

Guardianship

A guardian is a person who has the custody and control of the estate of a minor, or the custody of the person of a minor, or both. A guardian of the person of a minor is responsible for supporting and protecting the person of the minor.  A guardian of the estate of a minor is responsible for the custody and control of the estate of the minor.

Natural Guardians

In the Commonwealth of Virginia, the father and mother of every legitimate unmarried minor child, if living together and being themselves respectively competent to transact their own business and not otherwise unsuitable, shall be the joint natural guardians of the person of such child, with equal legal powers and equal legal rights with regard to such child.  Upon the death of either parent, the surviving parent shall be the natural guardian of the person of such child.  No person, other than a parent, shall be entitled to the custody of the person of a minor so long as either parent survives and such surviving parent is a fit and proper person to have custody of the child.  Further, if either parent abandons his or her family, the other parent shall be the natural guardian of the person of such child.

Testamentary Guardians

Every parent may by his or her Last Will and Testament appoint a guardian (i) of the person of his or her minor child and (ii) for the estate bequeathed by the parent to his or her minor child. Often, a parent will designate his or her surviving spouse as the guardian of the person and estate of his or her minor children, and a close family member or friend as a successor guardian should the surviving spouse be unable to act as guardian.

Appointment of a Guardian by Court or Clerk

In the Commonwealth of Virginia, the circuit court or the circuit court clerk of any county or city in which a minor resides or, if the minor is a nonresident, in which the minor has any estate, may appoint a guardian for the estate of the minor and may appoint a guardian for the person of the minor unless the minor has a guardian appointed by his or her father or mother.  If the minor is under the age of fourteen years, then the court or clerk may nominate as well as appoint the guardian of the minor.  If the minor is over the age of fourteen years, then the minor may nominate his or her own guardian, who, if approved by the court or clerk, shall be appointed accordingly.  A guardianship generally terminates once the minor attains the age of majority. 

In no case shall any person not related to the minor be appointed guardian until thirty days have elapsed since the death or disqualification of the natural or testamentary guardians, the next of kin have had an opportunity to petition the court for appointment, and the court or clerk is satisfied that such person is competent to serve as guardian.

The person seeking appointment as guardian of the estate of a minor is required to take an oath that he or she will faithfully perform the duties as guardian to the best of his or her judgment and to give bond in an amount at least equal to the value of the minor’s personal estate coming under his or her control.  Surety may also be required upon the bond of the guardian unless it has been waived.

In the Commonwealth of Virginia, the guardian for the estate of a minor is required to file with the Commissioner of Accounts an inventory for the estate of the minor.  The Inventory for the estate of the minor lists the personal estate of the minor under the supervision and control of the guardian, the minor’s real estate, the minor’s legal or equitable ownership interest in any personal or real property that will pass to another upon the death of the minor by means other than testate or intestate succession, and any periodic payments of money to which the minor is entitled.  In addition, the guardian for the estate of a minor is required to file with the Commissioner of Accounts the first account for the estate of the minor within six months after qualification.  The account for the estate of a minor is a statement of all money and other property which the guardian received, or became chargeable with, and has disbursed since qualification.  The guardian for the estate of a minor is required to file subsequent accounts on an annual basis with the Commissioner of Accounts.

Using a Trust to Provide for Children Under a Certain Age

Ensuring that a child’s interests will be protected in trust provides a more flexible management device than a court appointed guardianship, which involves court supervision of the guardian’s actions.

If assets are titled in a parent’s trust which could vest in a child when he or she has not yet attained an age at which the parent would wish the assets to pass outright to the child, then the trust should include a requirement that the trustee hold any interests which vest in a child who is under such age in trust for the benefit of such child until he or she reaches the age(s) specified by the parent in the trust.  The parent may set forth in the trust instrument when the trustee would be permitted to make distributions to or for the benefit of the child.  For instance, the trustee could be authorized to make distributions to or for the benefit of the child as the trustee deems necessary for the child’s reasonable support, maintenance, education, and health.  The trust instrument should also direct the trustee with regard to when the child can receive his or her interest free of trust.  A parent may authorize the trustee to make partial distributions to the child at one or more specified ages or upon the occurrence of specific events.  The trust instrument may also limit or waive any requirement for court supervision.

With regard to assets which pass through a parent’s Will to his or her child(ren), the parent may provide in his or her Will that in the event a child has not yet attained a specific age at the time of the parent’s death, then the assets should be held in trust for the benefit of the child and administered in accordance with the instructions set forth by the parent in his or her Will.

© 2011 GANDERSON LAW, P.C.