Caring From Beyond The Grave: Estate Planning And Guardianship For Minors In Arizona

While no one wants to sit and think about — much less plan for — their own death, once you have responsibility over a child, doing so becomes essential. This article dives into the consequences of leaving minor children behind after you die without proper estate planning measures and discusses the tools, techniques, and legal mechanisms you can put in place to protect your children. It will help you understand:

• Whether you know what will happen to your minor children if you die tomorrow.
• How including a guardian nomination in your will can help ensure your child’s safety.
• How to plan financially for the care of your children after your demise.

What Could Happen To My Minor Children If We Die Without Proper Estate Planning In Place?

Without estate planning to guide and ensure the future of your minor children after your death, the outcome will be up to fate and a court to decide.

Hopefully, family members or even family friends would come forward to try and petition the court for your children. But if none did, the Arizona State Department Of Child Safety or Child Protective Services would no doubt have to take custody while looking for a family member to take them in.

On the other hand, if you had a will, you could nominate their guardians yourself. Use the will or other signed written estate planning documents to choose the best and most trusted people in your life to care for your minor children.

While a juvenile court will make the final decision for permanent guardianship based on what is in the best interest of the child, a distinct priority will be placed on any potential guardians nominated by the parents. The court will, of course, still investigate to ensure everything is in order and potentially appoint a Guardian Ad Litem to advocate for the child’s interests (depending on the age).

Without that guardianship nomination, there could even be conflict among family members over who will take care of your children.

What Estate Planning Tools Should We Use To Ensure Our Minor Children Will Be Cared For After Our Death?

Given the emphasis placed on the priority of parental appointment, the best thing you can do is nominate the guardians you want for your minor children (or incapacitated adult children) in your will.

In your last will and testament, you can and should nominate who your successor guardian is for your minor children or adult incapacitated children. Arizona statute 14-5202 allows you to appoint one, and it would be a shame not to do so as a precaution, even if you are in perfect health. However, while Arizona law does allow the parent to have a say, it does not make that say absolute.

Guardian appointments are not automatic in Arizona, even if one has been nominated in your will. That proposed guardian will need to take your will to a probate court or a juvenile court and file a petition for the appointment of a guardian. Their case will be strong, however, and is likely to be accepted as they have priority of appointment because they were nominated by the parents’ will.

What Financial Estate Planning Measures Do I Need To Take To Care For My Children After My Death?

While a will can name a guardian, it can also determine what happens to any assets your children can inherit. But that does not always mean a will is the best tool to ensure the financial future of your children.

If all you have is a will and you leave significant wealth to your kid directly, the court is probably going to force a court conservatorship. This means the court will give the guardian they choose control over those assets, at least until the child turns 18.

This can be avoided with certain estate planning techniques, however, should you wish to have a more cautious or gradual approach. If you place your assets in a revocable living trust and or child sub-trust, your successor trustee can manage the assets in the children’s sub-trusts. This could allow you to have a different person in charge of the finances than the one with guardianship over your children, or the same, but with rules they must follow.

Alternatively, you could create a testamentary trust in your will, which the probate court would then create after your death according to your wishes, including appointing a trustee to manage your estate for the children.

Such trusts can distribute these assets when the child(ren) turns 18 and is dissolved, or you could request a step-by-step payout. For example, usually giving them the income generated at 18 and then paying them at ages 21, 25, and 30. You can make that as expansive or as restrictive as you want, which is the advantage of using a trust rather than simply choosing benefactors in your will.

If We Designate A Legal Guardian For Our Children, Can The Guardianship Be Challenged?

It is important to remember that nominating someone as your successor guardian is just a nomination. Doing so tells the court who you selected, giving them priority of appointment, but the decision, even the eventual court decision, can be challenged.

For one thing, Arizona statutes allow children older than 14 to object to a guardian. If you name your brother, the child’s uncle, but the child is 14 and really wants to live with the aunt, the court’s going to take the child’s objection into consideration and is going to do an investigation to determine who is more appropriate.

At 14, they can, in a way, partially nominate their own guardian. If the child is still a minor or even an infant and cannot speak for themselves, the court is going to appoint a guardian ad litem to make a recommendation based on what they think is in the best interest of the child.

Finally, if someone is appointed guardian and someone else wants to be instead, they can certainly fight it out. There could be trials on this issue, usually a bench trial. The Juvenile code says all decisions should be made in the best interest of the child. However, what you as a parent think is in your child’s best interest, and what a court finds when you are no longer there could be different things.

Nevertheless, you should always nominate whomever you think would be the best and most trusted guardian in your will.

How Do We Need To Choose And Plan For Both Temporary And Permanent Guardianship Of Minor Children?

Temporary guardianship is tough and might not be worth the time to plan for, though it is possible. The easiest thing to do would probably be to create a power of attorney over a minor child. In Arizona, you would have to renew that every six months.

You could also request temporary guardianship through a court, especially if there were an emergency situation. However, if you were nominated in a will or signed writing, you would probably have a priority appointment to be the temporary guardian.

Permanent guardianship, on the other hand, is a Title 8 action under the juvenile (not probate) court, though your nomination in a testament will be taken into account. Furthermore, if you have an estate to be left to your children, you can do so with a living trust during your life and then have sub-trusts with someone you choose as the trustee to manage it.

That could be the same person as the guardian, or it could be someone different. There are arguments for both possibilities. On the one hand, if you nominate a guardian of your minor child and make them a trustee over their trust, that could be a conflict of interest. On the other hand, if you choose a third party, it could cause issues and complications if they refuse to make distributions the guardian is requesting.

The remaining option is to have a will with a testamentary trust so that your child doesn’t inherit everything when they turn 18, alleviating the need for a conservatorship. Guardianships are not particularly straightforward in Arizona, and conservatorships require an intense amount of paperwork filings, including court permission to access restricted accounts.

Even many lawyers will tell you they are a bit of a nightmare, but they can help you do them. However, given that you can avoid them entirely by using a trust and appointing somebody as trustee, that may certainly be a better approach than doing nothing and ending up imposing a conservatorship and guardianship on your child and their guardian. For more information on Guardianship Of Minor Children In Arizona, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (888) 586-1009 today.