Parenting requires a lot of expenses—diapers, daycare, and maybe even a minivan. Do you really need an estate plan on top of everything else in order to take care of your kids? The best way to answer that question may be by asking what happens if you don’t have one.
Let's start with finances. In Minnesota, minor children can’t receive inheritance directly. If you don’t name a trustee in your estate plan to manage your children’s finances in the event something happens to you, a relative, family friend, or other “interested person” will need to go to court and ask a judge for permission to manage life insurance proceeds or any other money designated for your children in your estate. This is a function of the Minnesota Uniform Transfers to Minors Act. By naming a trustee in your estate plan, you get to determine exactly who will be responsible for your children’s finances rather than leaving it up to a judge to decide. You can also name an alternate trustee so that if your first choice is not available to help, there’s a backup plan in place.
The process is slightly different for determining child custody. Unlike with financial trustees, an estate plan can’t create an automatic transfer of child custody in the event a parent dies—only a judge can approve a custody transfer from a parent to a third person.* If you’ve named a guardian for your children in your estate plan, state law has established a fairly simple process for obtaining guardianship of the child in probate court. Unless someone objects, a probate judge can quickly confirm a parent’s choice in guardian. If you haven’t named a guardian in your estate plan, however, someone will need to take the responsibility on themselves and petition for custody in family court. This process is more complicated and a judge will have to decide whether granting the petitioner’s request for custody serves a child’s “best interests.” By naming a custodian in your estate plan, you can't remove the involvement of the court entirely, but you can reduce the role of the judge to confirming your choice of custodian.
If you don’t create an estate plan for your children, your life insurance proceeds won’t be forfeited to the state and your kids won’t be sent to live with strangers. State law has created ways to transfer your parental authority to your friends and family in the event you’re no longer available for your children, even if you never lift a finger. But by creating an estate plan, you get to name the specific people that you trust to take care of your children and that creates peace of mind, something that’s in short supply when you’re a parent.
* Minnesota law allows for parents to name a temporary guardian for their children that becomes effective immediately after death, but only for sixty (60) days. After the temporary guardianship ends, a judge will need to appoint a permanent guardian either through family or probate court.