805.934.4600
A Key Component of a Comprehensive Estate Plan
INTRODUCTION:
Estate planning is the process of contemplating, planning, and arranging to manage your affairs in the event of death or incapacity. This process involves creating legal documents to manage assets, health care decisions and the care of dependents. A well-prepared estate plan provides peace of mind by ensuring your wishes are known and carried out –while also helping loved ones avoid unnecessary taxes and legal complications.
WHAT STATISTICS TELL US:
Many people talk with loved ones about their wishes and simply hope for the best. Unfortunately, without proper legal documentation, this approach can leave families unprotected.
According to Caring.com’s 2025 Wills and Estate Planning Study, Americans with minor children are the least likely group to have estate planning documents in place. Only 24% of Americans aged 18 to 34 have a will in place, a significant decline from 33% in 2022.
Similarly, recent data from LegalZoom.com reveals that only 6.1% of surveyed parents with minor children have legally nominated a guardian. Moreover, 35% of U.S. adults report personally experiencing or knowing someone who has faced familial conflicts due to lacking an estate plan or will.
KEY CONSIDERATIONS
In California and most states, individuals under 18 years are considered minors who lack the legal capacity to enter into binding agreements, including those for property ownership. In other words, property left to a minor must be managed until such minor beneficiary reaches the age of majority.
While rare exceptions exist, guardianships and trusts are the most common methods for managing a minor’s property.
CHOOSING A GUARDIAN:
Selecting a guardian for minor children is often one of the most difficult yet important decisions parents can make. Key considerations include:
- Shared values and parenting style;
- Stability and lifestyle;
- Existing relationship with the child; and
- Willingness and ability to take on the responsibility.
It is essential to speak with potential guardians ahead of time to ensure they are willing to serve if needed.
Guardianships can be temporary or permanent. Temporary guardianships are used in situations involving a parent’s short-term incapacity, such as illness or travel, and last for specified periods until the parent can resume their responsibilities. Permanent guardianships typically arise after a parent’s death or long-term incapacity, lasting until the child reaches the age of majority or the court relieves the guardian of their duties.
Parents usually name a guardian in their last will and testament. However, if no guardian is named, a court will appoint one based on the child’s best interests.
CREATING A TRUST:
Trusts typically offer more safeguards and mechanisms for controlling a minor’s assets. They can help protect money from creditors, minimize the risk of mismanagement, and ensure funds are used for specified purposes, including educational expenses, health care, and other family needs.
A trust can also set a set of criteria or thresholds that an individual must meet to qualify for distributions. In other words, a trust allows parents to guide how and when their children access their inheritance, providing long-term structure and protection. The possibilities of managing children’s assets are virtually endless and only limited by your desires and creativity.
IN SUMMARY:
If you have minor children, failing to plan could leave critical decisions, such as guardianship, up to the courts. Courts may not fully understand the best choice for the child, let alone contemplate your personal desires.
If you already have an estate plan, it is essential to review it periodically to ensure your minor children are adequately considered.
Kirk & Simas attorneys are here to help Central Coast families, businesses, and real estate owners protect their families and loved ones from the unexpected.
To discuss your situation in greater detail, please call us at (805) 934-4600 to schedule an appointment today.