If you are the parent of a minor child, one of the most important things you can do is create a will to appoint a guardian for your minor child in the event of your death. Pennsylvania law establishes a parent’s right to appoint a guardian for a minor in their last will and testament. There are two types of tutors for a minor, the tutor to the person and the tutor to property. The guardian of the person is the person legally responsible for the welfare and well-being of the child upon the death of its natural parents. A minor’s personal guardian will look after the child’s physical needs, provide a home for the child, and make decisions about the child’s upbringing, religion, and social needs. The guardian of the property of a minor supervises the property of the minor. The estate guardian acts as the custodian or manager of the minor’s money. The minor is the owner of the funds and the court supervises the actions of the guardian. An estate guardian may be required to file an accounting in court at any time and must file an accounting at the end of the guardianship.
While only a parent can appoint a child’s personal guardian, anyone can appoint a child’s estate guardian. Pennsylvania law (20 Pa. CSA Section 2519(b)) provides that any person may, by will, appoint a guardian to real or personal property bequeathed to a minor on the death of the testator. An estate guardian may be necessary in situations where assets pass to the minor through the testator’s will or through a beneficiary designation such as life insurance or retirement accounts. However, it is often more beneficial to have a trust for a minor established rather than relying on a guardian of the minor’s estate. If you are considering leaving an inheritance to a minor, you should discuss the option of a trust with your estate planning attorney.
Upon the death of the natural parents, guardianship may need to be confirmed by the court. This is the proof that doctors, schools, etc. may need. Therefore, testamentary appointment does not eliminate the need to apply to court for guardianship, but rather allows the parent to choose who should be the guardian.
Good planning is necessary to ensure that your children are taken care of in the event of their death. It is important to ensure that your last will and testament correctly appoint a guardian for your minor children. You should have this provision reviewed by an estate planning lawyer. Additionally, you should discuss an overall financial plan for your minor children with your attorney and ask if a trust is the best option for your plan.
If you have questions or need assistance, contact OWM Law’s Elder Law Team at 610-323-2800, or email Rebecca Hobbs, CELA© at [email protected]
The legal advice in this column is general in nature, consult your attorney for advice tailored to your particular situation.
Rebecca A. Hobbs, Esquire is licensed to practice in the Commonwealth of Pennsylvania and is certified as an elder law attorney by the National Elder Law Foundation, as licensed by the Supreme Court of Pennsylvania. She is a principal of the law firm of O’Donnell, Weiss & Mattei, PC, 41 High Street, Pottstown and 347 Bridge Street, Phoenixville, 610-323-2800, www. owmlaw.com. You can reach Ms. Hobbs at [email protected]