Florida Probate, Trust & Guardianship Litigation

Alternatives to a Guardianship for Minors in Florida

When a minor stands to inherit or receive property from an estate, insurance settlement or judgment, a guardianship for the minor may be required.  We have written about inheritance by a minor here.

If a standard Florida guardianship is required, the money will be held in the guardianship for the minor until the minor reaches age 18. Use of the guardianship funds will require authorization from the guardianship court. Typically, the guardianship court will authorize the distribution of funds for the care and upbringing of the minor ward, including medical care.  Nevertheless, if the parents of the minor have their own assets, the guardianship court may require that the parents continue to support the minor, instead of using guardianship funds.

Please see the Approval of Settlement for Minors and Guardians chart.

Although advance planning for the receipt of insurance settlements of judgments may be impossible, in the case of inheritances for minors, advance planning may be able to avoid having to incur the expense and complexity of a guardianship for the minor.

Alternatives to a Guardianship for a Minor

Leave the Inheritance in Trust.

The person leaving the inheritance to the minor, instead of leaving the inheritance outright to the minor (which results in the guardianship) could instead leave the inheritance in a trust for the benefit of the minor.  A trust is a great alternative to a guardianship for a minor in Florida.  Not only is the oversight of the guardianship court avoided, but far more control over the inheritance can be obtained.  For example, instead of releasing the inheritance to the minor at age 18, the funds could be held in further trust until the minor becomes more mature, whether that be age 21, 25, 30, or beyond.

Uniform Transfer to Minors Act.

Florida law allows an account to be set up for minors.  The estate planning document can specify that the inheritance shall be transferred to the UTMA account, avoiding the expense of a guardianship and the expense and complexity of having the money held in trust for the minor.  The primary disadvantage is that the money must be paid to the minor upon reaching adulthood – which for any substantial amount of money is probably too young an age.  Therefore, this alternative to a guardianship for the inheritance to a minor in Florida needs to be considered carefully.

 

 

Yes, a minor is permitted to inherit from an estate.  A minor will not be permitted to directly access the inheritance until the age of majority.

How Can a Minor Inherit From an Estate?

In all 50 states, in the absence of any advance planning or post-death planning, the inheritance of a minor will be controlled by either a guardianship or a parent or other natural guardian.  Typically, the minor will be able to benefit from the inheritance prior to the age of majority, through the payment of the minor’s expenses, such as school, summer camp, and even housing and support in some situations.  Once the minor reaches the age of majority, the funds being held for the benefit of the minor will be released to the beneficiary.

How Does a Guardianship for a Minor Work?

Unlike probate and trust law, which is somewhat consistent among the 50 states in terms of substance and procedure, guardianship law and procedure is more varied.  In general, when a minor is to inherit, a court in the state of the minor’s residence, typically a probate or surrogate’s court, will appoint a guardian to receive the inheritance.  The guardian will be able to spend money for the benefit of the minor, but usually only with court approval.  Although the expense and complexity of a guardianship varies from state to state, guardianships are expensive and are considered by most people involved with the guardianship process to be a hassle.  Read about guardianships for minors in Texas and Florida.

How Can a Guardianship for a Minor be Avoided?

A guardianship for a minor can be avoided with prudent estate planning by the testator.  The two most common techniques are the use of a trust and the use of a Uniform Transfers to Minors Act account (UTMA).

A trust for a minor can be established within a will.  The will provides “instructions” for the formation of the trust, and should include the following:

  • How much is being left for the minor
  • The name of the trustee, and perhaps a backup trustee
  • The rules for making distributions.  An example would be to direct the trustee to “provide so much of the income and principal of the minor’s trust as is necessary for the health, education, maintenance and support of the minor.”  Another example would be for the trustee “to distribute $25,000 per year to the person having custody of the minor, so that custodian may support the minor in the best way that custodian believes is proper.”
  • Rules for when the trust terminates.  A trust established by a will for the benefit of a minor can continue on past the age of majority. Indeed, when substantial sums of money are being left to minors or young adults, it is fairly common to leave assets in trust until the age of 30, or even 40, in some cases.  Some trusts even continue through the entire lifetime of a beneficiary, doling out sums every year.

Can an UTMA account Avoid a Guardianship for a Minor?

Yes, an UTMA account will avoid probate for a minor.  The biggest issue with UTMA accounts is that they automatically terminate when the minor reaches the age of majority (or in some states, at age 21).  The biggest advantage of an UTMA account is that they do not require following the trust administration rules of that state.  On balance, UTMA’s seem to be most appropriate for more modest sums of money, typically under $100,000.

 

Oral Argument at 5th District Court of Appeals

Florida Probate Attorney Jeffrey Skatoff Arguing in Court

Jeffrey Skatoff

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(561) 842-4868

jeffrey@skatoff.com

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