Major Issues for Minors: Protecting Minors in Trusts and Estates

While growing up, many children express a desire to receive adult rights and responsibilities long before they are ready for them or are legally permitted to have them. In an estate planning context, a properly executed estate plan does it’s best to slowly shift the benefit and burden of managing funds from an adult fiduciary to a minor or younger adult beneficiary. Where actual minors are involved and there is no estate plan to guide this transition, both the courts and financial institutions have their mechanisms to protect children and their assets.

In the New York Surrogate’s Court, a minor child who becomes a party to estate administration as a beneficiary, legatee or other role will often have court appointed representative known as a guardian ad litem.   Guardians ad litem are typically attorneys or other competent adults who stand in for the minor child or children and represent their interests. In an estate administration, the Guardian Ad Litem (GAL) assures that decisions made by adult fiduciaries are fairly handled as it relates to the children.

As the GAL’s representation draws to a close, he or she will right a report for the court of their findings. When there is a question about an aspect of estate administration, the GAL may intervene or object on the child’s behalf in the same capacity as an adult beneficiary. The GAL is compensated for their work and those funds often come directly from the assets left to the minor children.

On the financial side of things, financial institutions also seek to protect minors who have money set aside for them. This is regulated in New York by the Uniform Transfers to Minors Act (UTMA) and allows an adult (a parent or guardian) to serve in a custodial role over a minor’s account. Each account must benefit a single minor and pooled accounts for multiple children are not allowed.

During the period of minority, the custodian of the account is entrusted to ensure the monies are protected. The custodial role terminates at one of three times: at age 18 if the account creator dictates that the account is to terminate at the age, at age 21 if the account creator is silent on termination or upon the death of the minor before termination. If the custodian dies prior to the termination of the custodial account, a new custodian will be appointed.   Successor custodians are often not named, so a court appointment is often necessary.

These fail safe protections do not take the place of an estate plan; in fact, relying on them can cause extra costs, waste due to a child receiving funds at too young an age or extra administrative time and costs. Protecting minors and their assets is best done by a minor’s parent and they have the power to do so in a more effective, efficient and inexpensive manner.

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