Do you know the best way to leave your kids an inheritance? Keep in mind that a Florida child under 18 cannot inherit property in their own name above $15,000. Rather, an adult must manage that property for them until they can manage it for themselves. Thus, here are some options for a parent to consider:
1. Use your Will to Name a Property Guardian
Your Will is one way to leave your kids an inheritance. (Remember, we are not talking about custody of your child–we are talking about “property” or “assets.”) . You do this by naming a property guardian in your Will. The Court ultimately approves the choice you make. Thus, it is very important to choose someone with no criminal background, no crimes against children and who doesn’t suffer from alcoholism or any similar problem.
You should understand that a property guardian does not take title to the property. Rather, the guardian manages it WITH court approval. If the parent does not name a guardian, the Probate Court will. While there are drawbacks, at times a guardianship is unavoidable (see #2).
- Drawbacks exist with this option. Appointing a guardian in your Will or via the court initiates a process with strict check-in and formal accounting requirements for the guardian as to the status of the funds.
- But most importantly, the guardianship terminates at 18 which is a very young age for a child to inherit. Thus, it is seems preferable for the parents to set up another plan involving a Trust, rather than asking the courts to take over.
2. Name a Trustee in your Trust
Another option to leave an inheritance for your kids is a trust (either testamentary or Revocable Trust). You name a Trustee to act as a custodian of the property and handle investments, disbursements and the such. You may set up a trust for each child, or set up a children’s trust to use for all of your minor kids.
The funds in this instrument may be protected from creditors, depending on how it is drafted. With a trust, the parent can set guidelines for the Trustee to follow to help provide for and raise your children. There are many different provisions which can be put into place to make sure your child progresses in life, and to ensure funds are not received too early, before the child can handle the management of funds. Disbursements can be much later, such as 25, 30 and older. Of course, the longer the life of the trust, the higher the trust fees. However, that concern needs to be balanced with the possibility of your children obtaining funds too early in life.
- One major issue is the homestead property. According to our Florida Constitution, there are strict rules on devising when it comes to homestead when you have a surviving spouse or minor child. Arguably, the homestead would immediately transfer to the minor child if both parents were to die, thus, bypassing your Revocable Trust. Read more here. In that situation, a guardian would have to be appointed anyway, and your home would go through probate. This is unsettled law. There are other options and plans we can take to minimize risk but anytime a homestead is put into a revocable trust, you need to stop and think. Please know and understand the risks before you agree. (Does your home really need to be in trust? This is not the end of the world.)
3. Name a Custodian under the Florida Uniform Transfers to Minors Act
This is a good idea for people that want to create “trusts” with relatively small amounts of money in order to leave an inheritance to your kids. Many grandparents take advantage of this option. This Act is set forth in the Florida Statutes, thus, there is a precise set of rules within which to comply. You create this by opening an account at a bank for the benefit of your minor child. It is a good idea that the “custodian” you name is a different person than the person who opens the account. This is because if the custodian/creator are the same person, and this person dies before the account has been transferred to the beneficiary, the value of the account is deemed part of the creator’s gross estate for federal estate tax purposes (but keep in mind that estate tax is not an issue for most people unless you have a gross estate in excess of $5 million).
- No creditor protection.
- The money in the account is placed in a custodial account until the child reaches 18, 21 or 25. See Florida Statute for more details. Again, keep in mind that small amounts are recommended so your child does not inherit too much, too young. However, now that Florida revised the statute to extend the timeframe to 25 under certain conditions, it has become a better option.
4. Other Options to Leave Kids an Inheritance
Other options exist such as 529 plans and life insurance. Talk to a financial advisor or insurance advisor to learn more about these types of options, and make sure they are consistent with your estate plan.
Disclaimer: The Law Office of Lori Vella’s website contains general information directed to Florida residents. This firm does not intend to give legal advice through its pages and/or blog. If you need legal advice, we encourage you to find an attorney licensed in your state. This language on this website website does not create an attorney-client relationship between you and this firm.