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Surviving Minor Children

What happens when a person dies and leaves a minor child?

There are many things to consider when a person dies and leaves a child under the age of 18. The child may need help understanding information and making decisions in a probate or may need someone to make decisions for him or her. If both parents are dead and the child has no Guardian, the child will need a permanent Guardian with whom to live. If the child inherits money from the parent who died, someone must accept and manage the money for the child.

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Who represents a minor child in a probate?

If a parent or Guardian survives the minor child, that adult can act for the child in a probate. The parent can receive notice, sign documents and make decisions for the child. If no parent or Guardian survives, the court may appoint a guardian ad litem to help the child understand the information and make decisions. The role of the guardian ad litem is only to help the child in court and not to take care of the child. Sometimes, the court will appoint a lawyer for the child who will represent the child in court and can also act as the guardian ad litem.

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What does a Guardian do?

A Guardian physically cares for the minor child and makes all decisions that a parent could about the child's education, health and welfare. A Guardian can also manage a child's inheritance. The Guardian must use any property that he or she receives on the child's behalf for the child's support, care and education and save any extra amounts for the child's future needs. The Guardian must give the child all remaining property when the child turns 18. The Guardian is usually not paid for caring for the child and is not required to spend his or her own property to support the child.

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Who has the right to serve as the Guardian of a minor child?

The person who died can appoint anyone age 18 or over as the Guardian of an unmarried minor child in his or her Will. This is called a "testamentary appointment." However, a parent who survives the minor child has the right to take care of or continue taking care of the child. The court will not appoint a Guardian unless both parents have died or the surviving parent cannot or will not take care of the child. If both parents have died, the Guardian appointed in the Will of the last parent to die has the right to act as the Guardian. If the last parent to die did not appoint a Guardian under his or her Will, did not make a Will, or if the person who is named as Guardian in the Will does not want to be the Guardian, the court will hold a hearing to choose a suitable Guardian.

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How does a Guardian accept an appointment under a Will?

The person named as Guardian in the Will must file a document with the probate court accepting the guardianship. The Guardian must notify the minor child and the person caring for the child or the child's nearest adult relative within 10 days after accepting the appointment. An adult relative means a person who is 18 or older and is the child's grandparent, aunt, uncle, brother or sister. If the child is 14 years or older, the person named as the Guardian must also notify the child of the child's right to object to the appointment within 10 days of accepting the appointment. You can read:

You can file:

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Can a minor child object to the appointment of a Guardian under a Will?

Yes. A minor child who is 14 years or older may file a document with the court objecting to the appointment of the Guardian under a Will. The child must file the objection before the Guardian accepts the appointment or within 30 days after the Guardian has accepted. If the child objects, the court will hold a hearing to choose a Guardian. The court may decide to appoint the person as Guardian to whom the child objected. The minor child can file:

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How does the court appoint a Guardian if the person who died did not appoint one under a Will?

If the person who died did not appoint a Guardian under his or her Will, did not make a Will, or if the person who is named as Guardian in the Will does not want to be the Guardian, the court will hold a hearing to appoint a suitable Guardian for the minor child. The person who asks to become the Guardian must notify the following persons of the hearing:

The court can appoint any adult to act as the Guardian as long as it is in the best interests of the child. The court will give priority to an adult relative of the child. An adult relative means a person who is 18 or older and is the child's grandparent, aunt, uncle, brother or sister. If the child is 14 years of age or older, the court must appoint the person the child chooses unless it is not in the child's best interests. The court may appoint a temporary Guardian for up to six months if needed. See minor guardianship petition packets.

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When does the appointment of a Guardian end?

The appointment ends when the Guardian dies, resigns, or is removed by the court or when the minor child dies, is adopted, marries or turns 18.

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What happens to property that the person who died left to a minor child?

It is usually not a good idea to leave property directly to a minor child. Doing so can cause problems in receiving, managing and preserving the property. It is possible that different people will end up holding property for the child, some of whom you may not even know. While the child is under 18, the property cannot be used for anything other than the child's support and education. But as soon as the child turns 18, he or she will receive all of the remaining property no matter what his or her maturity level. Finally, it is harder to make sure that the property is held and spent properly.

Property left to a minor child as probate property or nonprobate property usually passes in one of these ways:

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How can I distribute property of the person who died worth less than $5,000 to a minor child?

A person who holds property payable to a minor child can give $5,000 or less of this property each year to one of the following:

A person who receives the property on behalf of the child must use it only for the child's support and education and give all of the remaining property to the child when the child turns 18.

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How can I distribute property of the person who died to a minor child under the Uniform Transfers to Minors Act ("UTMA")?

The Uniform Transfers to Minors Act ("UTMA") allows a person to transfer property to a custodian for the benefit of a minor child. The custodian manages and invests the property for the child and pays as much of the property to the child or for the child's benefit as the custodian chooses. A custodian of property that passes to the child as probate property or nonprobate property must give all of the remaining property to the child when the child turns 18.

Property owned by the person who died can pass to a child under the UTMA in the following ways:

If you have property that should pass to a minor child under the UTMA or if you are the parent or Guardian of a child who will be receiving property under the UTMA, you should talk to a probate lawyer to make sure that the property passes correctly.

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How can I distribute property of the person who died to a minor child in a protective proceeding?

If a minor child inherits property directly from the person who dies, the court can approve a plan for any amount of property in a procedure called a "protective proceeding." A protective proceeding is flexible and can involve the transfer of only one type of property or several. The court can appoint a Conservator to manage property on behalf of the child even if a Guardian has already been appointed. The court can also appoint a limited Guardian to receive property for the child.

If the minor is named directly to receive money under a plan, contract or account, this may create problems in receiving the benefits. For example, some life insurance companies will release the benefits under a policy directly to a parent or Guardian of the child. Others, however, will release the benefits only to a "Guardian" even if the child has a surviving parent. If the insurance company refuses to release any of the benefits to anyone but a Guardian, you will need to ask the court to appoint a limited Guardian in a protective proceeding.

The forms to appoint a limited Guardian to receive life insurance funds on behalf of a child are:

The forms are designed for life insurance benefits but can be used to transfer other types of property to a child, if necessary.

You may want to talk to a lawyer familiar with protective proceedings to find out what options would work best for the property and the child.

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How can I distribute property of the person who died to a minor child under a trust?

If the person who died created a trust in his or her Will or if the Will directs that the property pass to a trust that has already been created, a Trustee can hold that property for the minor child's benefit. The Trustee can keep the property in trust for any amount of time that the person who died wanted, including after the child reaches 18. The trust often allows the Trustee to use the property for purposes such as college or medical care as an adult, something that is not possible without a trust. For more information, see Trusts.

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Rev. 6 August 2013
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