Essential Tools for Parents of Minor Children

Deirdre ODonnell • July 22, 2025

Approximately three-fourths of Americans do not have a basic will. Many of the same people also have children under the age of 18, which underscores a major misunderstanding about estate plans: They can accomplish much more than just handling financial assets (money, accounts, and property).


One of the most important estate plan functions for parents of minor children is the ability to provide specific guidance about how their children will be cared for and who will care for them in case something happens to the parents.

To account for all emergency contingencies concerning you and your children, your estate plan should form a comprehensive safety net that addresses your children’s care needs and protects them from the unthinkable.


Tools You Need If You Have Minor Children

As parents, we instinctively strive to shield our children from harm and set them up for success,

now and in the future. While we cannot predict the future, we can prepare for it. Estate planning is a crucial step in this

preparation, especially when minor children are involved. It is not only about distributing your

money and property after your death; it is also about establishing ways to care for your children

if you no longer can. Your death or incapacity (inability to manage your affairs) from a sudden illness or accident is a

situation that you would likely rather not think about but must consider in preparing for worst-

case scenarios that could lead to a court deciding who cares for your child.


Data on parental mortality is sobering: More than 4 percent of minor children have lost at least

one parent. If you wait too long to create your estate plan, it could be too late. More than any

other reason, Americans cite procrastination as the reason they do not have an estate plan.3

Procrastinating on creating your estate plan could mean it will not be there when you—and your

children—need it.

To safeguard your children’s future, three estate planning tools are particularly important: a will,

a power of attorney for minors, and a standalone nomination of guardian.

Last Will and Testament

A last will and testament (also known as a will) is a cornerstone of any estate plan, but it takes

on added importance when you have minor children. Your will outlines your wishes regarding

the distribution of your money and property after your death. It also allows you to do the

following:


● Name a guardian. A guardian is the person you want to raise your children if you and the

other legal parent are deceased. The most common choice of guardian is a close family

member, such as grandparents or siblings, or a close family friend.

● Establish an inheritance for your children. Because minors cannot directly inherit money

and property over a certain limit set by state law, there needs to be a way to handle their

inheritance for them until they reach legal adulthood. A testamentary trust (one that is

created in a will) is a safe way to set aside money and property for your minor children. The

terms of the testamentary trust allow you to name a trustee to oversee the inheritance.

Another benefit of a trust is that you can determine when the children receive their

inheritance and how they will receive it.

● Name an executor. An executor (or personal representative) is the person you designate to

carry out the instructions in your will, including managing your estate and distributing your

money and property. They might work closely with the guardian and the trustee to ensure

that your instructions are executed smoothly and according to plan. The same person may

serve in more than one role in your estate plan (e.g., guardian and trustee, guardian and

executor).


Power of Attorney for Minors

A power of attorney for minors, sometimes called a designation of standby guardian or

something similar depending on the state, is a legal document that empowers a chosen

individual (your agent or attorney-in-fact) to act for your minor child on your behalf. This person

steps in to make decisions regarding your child’s care if you become incapacitated or

unavailable.

The power of attorney can grant the agent broad authority to handle various aspects of your

child’s life, including the following:

● Healthcare: making medical decisions, consenting to treatments, and accessing medical

records

● Education: enrolling your child in school, making educational choices, and attending school

meetings

● Finances: managing your child’s finances, including accessing bank accounts, applying for

benefits, and handling their inheritance

● Legal matters: representing your child’s legal interests in matters such as a custody

dispute, personal injury claim, or inheritance matter

● Daily care: meeting your child’s food, shelter, clothing, and other basic needs


Although the power of attorney grants the agent significant authority, there are limits to what it

permits. The agent cannot consent to the child’s marriage or adoption. In addition, many state

laws impose expiration dates on these documents (e.g., six months, one year), so it is important

to review and update them regularly to ensure that they remain valid.


Standalone Nomination of Guardian

While a power of attorney addresses temporary situations, such as short-term incapacity or

extended travel, a standalone nomination of guardian document focuses on the long-term care

of your children in the event of your death or incapacity.

Without a designated guardian, a court will decide who cares for your children. The

guardianship process can be lengthy and uncertain and could potentially result in the

appointment of a caretaker you would not want gaining custody of your kids.

You should name a guardian in your will. However, a standalone document that also names a

guardian (if allowed in your state) offers the added benefit of being easier to update than a will,

which often requires more formalities and can take longer to change.


Revocable Living Trust

In addition to a power of attorney, nomination of guardian, and will, the parents of minor children

might consider a revocable living trust that holds their accounts and property during their lifetime

and distributes them after their death.

You (the parent) maintain control of the accounts and property in the trust while you are alive as

the current trustee. You can change the trust’s terms as needed because you are the

trustmaker, and this type of trust is revocable. A revocable living trust can help avoid probate

and give your children faster access to the resources they need. You can also specify how and

when your children receive their inheritance, name a successor trustee to continue

management of the trust if you suffer incapacity, and provide financial support for the guardian,

further synergizing your estate plan.


How These Tools Work Together—and What Can Happen If You Do Not Plan

These three estate planning tools are not interchangeable; they are complementary and

designed to work together to address immediate and long-term needs in a range of potential

scenarios.

Imagine a scenario where both parents are in a car accident. One parent dies, and the other is

severely injured and temporarily incapacitated. The agent named in the temporary power of

attorney or delegation of standby guardian immediately steps in to temporarily care for the

children.

If the injured parent passes away, the designated guardian (who may be the same person as

the agent under the temporary power of attorney) named in the will or standalone document can

provide the children with a stable permanent home. The will can be structured so that the

children’s inheritance is managed through a trust that specifies how and when their inheritances

should be spent and distributed.

Failure to have any one of these estate planning tools can lead to complications and unintended

consequences for your minor children. For example:

● A missing temporary power of attorney could lead to delays in, or the inability to, make

emergency decisions about medical treatment.

● A missing guardian nomination document could lead to a court choosing a guardian you

would not have chosen. Ostensibly, the choice a judge makes will be in the child’s best

interest, but do they really know your child and family dynamics well enough to make this

choice?

● A missing will can also lead to a court appointing a guardian who is someone other than

your first choice. In addition, your children may not receive the inheritance you intended in

the way that you intended, and you lose the ability to specify how your money and property

are used for their benefit. Further, they will end up getting what is left of their inheritance

outright when they reach the age of majority (18 or 21, depending on the state).


Other Planning Tools and Tips for Parents

Parents should understand that they can only nominate a guardian for their child, not legally

appoint one; the court has the final authority to decide, though it gives significant weight to the

parents’ nomination.

If there is evidence that your chosen guardian is unfit or unable to provide proper care, the court

may appoint a different guardian in the child’s best interest, even if it goes against your wishes.

There is also the chance that a family member could contest your guardianship choice or your

first choice of guardian is unavailable.

These outcomes are unlikely, but since they could undermine your wishes, there are additional

steps you can take to minimize the risk and strengthen your case.

● In a separate letter, sometimes referred to as a letter of intent, clearly state your choice of

guardian and provide a detailed explanation of why you believe this person is the best fit.

Speak to their qualifications, relationship with your children, and ability to provide a stable

and loving home.

● Name alternative guardians in case your first choice is unable or unwilling to serve.

● To prevent misunderstandings and reduce the likelihood of a challenge, have open and

honest conversations with family members about your guardianship decision. Explain your

reasoning and address any questions or concerns they may have.

● Have your will or separate guardian nomination form properly executed according to your

state’s laws. To be legally binding, they may need to be witnessed and notarized and meet

other requirements.


Fitting Together the Pieces of Your Estate Plan

Each part of an estate plan has a role to play, but they work best when considered as parts of a

larger plan that addresses big issues such as the well-being of your minor children.

A will, temporary power of attorney, and standalone guardian document are not

interchangeable; they are complementary. Incorporating all three into your plan, alongside other

strategies such as a revocable living trust and a letter of intent, addresses the immediate and

long-term needs of your minor children in any eventuality. If you have minor children, estate planning is a necessity. Do not leave your children’s future to chance. Consult with us at The O'Donnell law Center to create a multipoint plan that protects you and your family.

A man and a woman are sitting at a table on a balcony overlooking a lake.

Estate Planning for Vacation Home Owners

By Deirdre ODonnell • July 22, 2025
As the owner of a vacation property, you are aware of the joy and responsibilities that come with ownership. Your second home is where you celebrate with your loved ones and make memories. To ensure that this destination can continue to bring joy to your family, it is important that you protect the property with a proper estate plan. Consider the following important questions as you begin the estate planning process. What will happen to the property at your death? The fate of your vacation property will largely depend on how it is currently owned. If you are the sole owner of the property, or if you own the property as a tenant in common with one or more other people, you will need to decide what will happen to your interest in the property. If you own the property jointly with another person as joint tenants with rights of survivorship or with a spouse as tenants by the entirety, the other owner will become the sole owner upon your death without court involvement. If your vacation property is owned by a trust or a limited liability company, the property will continue to be owned by these entities even after your death. The trust instrument or operating agreement may provide additional instructions about what will happen to the property upon your death. What do you want to happen to the property at your death? The benefit of proactively creating an estate plan is that you get to choose what happens to your money and property and make it legally binding. It is important to note that if you do not create a plan for your property (and you do not own it as a joint tenant with right of survivorship or tenant by the entirety), your loved ones will have to go through the probate court process according to your state’s laws. Probate is the court-supervised process in which your affairs are settled and your money and property are distributed to the appropriate people. It is important to note that owning property in a different state than where you reside could lead to your loved ones having to open two probates (one in the state where you resided at death and one in the state where the vacation property is located). When handling your vacation property, there are a variety of different options. ● Select one loved one to give the property outright. ● Leave the property outright to a group of people. ● Give the property to a group of people as tenants in common and create an ownership agreement. ● Prior to your death, transfer the property to your revocable living trust, to be held for a long period of time or indefinitely. Note: state law may limit the duration of the trust (known as the rule against perpetuities). If you want the trust to hold the property indefinitely, you must speak with an experienced estate planning attorney to accomplish this goal. ● Prior to your death, transfer the property to a special trust that owns only the property, to be held for a long period of time or indefinitely. ● Prior to your death, transfer the property to a limited liability company, to be held for a long period of time or indefinitely. ● Instruct your trusted decision maker to sell the property. Can your beneficiary afford the vacation property? While there may be a lot of happy memories associated with your vacation property, you know that there are also a lot of responsibilities. When you decide to leave your property to a person (or group of people) outright, they will become responsible for those financial obligations, such as mortgage payments (if any), utility bills, property insurance, and property taxes. If you want your beneficiary to keep the property, you must consider whether they can meet the financial obligations; if not, your beneficiary may end up selling the property prematurely. For all of your Estate Planning needs please contact The O'Donnell Law Center in Osage Beach
A bride and groom are posing for a picture on their wedding day.

Estate Planning Basics for Newlyweds

By Deirdre ODonnell • July 22, 2025
Getting married is a special time in your life; you may have a beautiful wedding, a fun reception (with a delicious cake and special gifts), and a romantic honeymoon. It is also the right time for you and your new spouse to plan for your future—for richer or for poorer, in sickness and in health. Why You and Your New Spouse Need to Plan Your Estates Why should you and your new spouse care about estate planning? Because everyone—young or old, married or single deserves the peace of mind that comes from protecting themselves and their loved ones against life’s unexpected challenges. Unfortunately, many couples spend more time planning their honeymoon than they do planning the best way to protect and provide for each other through estate planning. What Happens Without an Estate Plan? Without an estate plan, if you become unable to manage your affairs due to illness or injury or you pass away, your new spouse could face unnecessary challenges and costs in administering your estate during an already difficult time. Estate planning is a powerful way to protect them from heartache and difficulty and make their journey forward easier. If you are alive but can no longer manage your own affairs (in other words, you become incapacitated) and do not have an estate plan: ● You will leave your spouse and the rest of your family in the dark. They will not know whom you would like to make decisions for you or how you would like your property and accounts (your assets) to be managed during your incapacity. This situation can lead to family conflict and damaged relationships as your loved ones each champion what they think you would have wanted regardless of whether they are correct. ● Your loved ones will face the burden of making tough decisions about what you would want for medical interventions, life-sustaining care, and the withdrawal of life support. ● The court and state law, not you, will decide who makes healthcare decisions for you if you are unable to make or communicate those decisions yourself. ● If you are your minor children’s only legal parent and you cannot take care of them because of your incapacity, a judge, not you, will decide who will take your place. ● In certain circumstances, the court may lock down access to your money and property so that even your spouse must get court permission before making financial moves or necessary expenditures. If you pass away without an estate plan: ● Again, you will leave your spouse and loved ones in the dark—this time regarding whom you would want to wind down your affairs and whom you would like to inherit your assets. ● If you have not prepared a will to nominate a guardian for your minor children and you are their only legal parent, the court will be left to appoint a legal guardian based on state law and what the court deems is in the best interests of the child with no input from you. ● Assets that your loved ones receive at your death may be exposed to divorcing spouses, bankruptcy creditors, medical crisis creditors, predators, and frivolous lawsuits. ● Depending on state law, your spouse, children, and other family members may all be entitled to share in receiving your assets. ● Your beloved pet could end up in a shelter or euthanized if alternate arrangements cannot be made for their care. What Should You Do? We invite you and your new spouse to call our office to set up a meeting. We will walk you through how to protect each other, those you love, your beloved pets, and your hard-earned money and property so that things are easier for you and your families. Give us a call at The O'Donnell Law Center in Osage Beach today. We look forward to hearing from you.