Probate, trust, guardianship and inheritance litigation
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Can a Minor Inherit From an Estate?

By:  Jeffrey Skatoff, Esq.

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.