Providing for Young Children

Peace talks mediation can help you make all the important decisions for your children. Because we work in co-mediation attorney-therapist teams, we can deal with the emotional components of these issues right along with the legal issues.

Choosing a personal guardian: Who will raise your children if you cannot?

• Personal Guardian:
  • If no parent is available to raise your child, another adult must be legally responsible to do so. This person is called the child's personal guardian.
• Using a Will:
  • A will is the only legal document you can use to name your children's personal guardian. Other documents that name a personal guardian are not valid in CA.
• Court Approval:
  • The personal guardian named in your will does not actually become the legal guardian until the court approves the person after your death. A letter can be attached to a will explaining why you have chosen the person as the personal guardian. If no one contests your choice named in your will, usually the court will confirm the person you have named.
• Appointing the same guardian:
  • When two parents are involved in raising their children, they should agree on the same person to appoint as a personal guardian. If both parents die simultaneously, naming different people as the child's guardian could result in a conflict.
• If you don't want the other parent to become the Personal Guardian:
  • A general rule is that one parent cannont succeed in appointing someone other than the other natural parent to be personal guardian, unless the other parent:
    • Legally abandoned the child, or
    • Is unfit as a parent (alcohol abuse, history of violence or molestation, or mental illness)

Choosing a Financial Guardian: Who will handle and supervise your money for your children's benefit?

• Minor Children cannot own property outright:
  • The maximum amount a child can own in his or her own name is between $2,500 to $5,000. There must be an adult legally responsible for all property owned by a child. This person would be your child's financial guardian.
• Duties of a Financial Guardian:
  • Must manage the property you leave for your children honestly and prudently.
  • Must act in the best financial interest of the children.
  • Must use the property to pay for the children's living, health, and education expenses.
• Naming a Financial Guardian:
  • The simplest plan would be to name the Personal Guardian you have chosen as the Financial Guardian.
  • A Different person should be named Financial Guardian if there are compelling reasons the Personal Guardian would not be the best choice to manage your child's money. These reasons could include that the Personal Guardian many not have the financial or practical experience to manage property prudently.
  • Choose a Financial Guardian that your family members will accept and respect. This is important to avoid any family conflicts.

Legal Methods to Leaving Property to your Minor Children:

• Custodianship via Uniform Transfers to Minors Act (UTMA)
  • In your will or living trust, you can identify the property and the name of the minor you are leaving it to. You also name a custodian who will manage the property and that the custodian is to act "under California's Uniform Transfers to Minor's Act."
  • This act allows the custodian to have control over the property for the benefit of the minor. In California, the gift is released from the care of the custodian when the minor turns 18 or 25.
• A Child's Trust:
  • All property you leave to a child in a trust is established and managed under the terms of the trust.
  • You are able to specify the trustee's power and select the age the beneficiary must reach before the trust property is turned over.
  • This trust allows property to be held legally separate from the other Children's property.
• Family Pot Trust:
  • A pot trust is often used by parents with younger children.
  • This type of turst allows the family money be kept together, so that it can be used on any child as required.
  • The trustee named in the trust decided how much money shall be spent on each child. Therefore, if one child needs braces and the other child wants to go to private college, the trustee has discretion over the property to provide.
• Property Guardianship:
• There are many drawbacks to leaving property to your children to be supervised by a property guardian. There are several reasons why:
  • The property must go through your will, meaning that it has to go through probate.
  • Property guardians are subject to court review, reporting requirements and rules on how they can use the funds. This usually requires hiring an attorney.php">attorney and paying fees to the court.
  • You can't specify when the guardianship ends. The guardianship must end at age 18.

Leaving Property to Children Who are Not Your Own

• Leave the gift in your will or living trust through the Uniform Transfers to Minors Act. (UTMA)
  • In your will or living trust, you can identify the property and the name of the minor you are leaving it to. You also name a custodian who will manage the property and that the custodian is to act "under California's Uniform Transfers to Minor's Act."
  • This act allows the custodian to have control over the property for the benefit of the minor. In California, the gift is released from the care of the custodian when the minor turns 18 or 25.
• Create a Child's Trust for your gift.
  • All property you leave to a child in a trust is established and managed under the terms of the trust.
  • You are able to specify the trustee's power and select the age the beneficiary must reach before the trust property is turned over

Leave the gift to the child's parent or legal guardian and rely on the parent to use the gift for the child's benefit.

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