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Your Will Names Who Raises Your Kids. Does It Protect What They Inherit?

By Fratello LawIn Estate PlanningPosted
Estate Planning for Minors

When Long Island parents sit down to plan for their families’ futures, the first instinct is usually right: get a will, name a guardian, done. But a one-line guardian nomination is only the beginning of protecting children who aren’t yet old enough — or ready enough — to manage an inheritance on their own.

Consider a hypothetical that plays out in Suffolk and Nassau County Surrogate’s Courts every year: two parents from the Smithtown area pass away in a car accident, leaving behind a 12-year-old and a 19-year-old. Their will names a guardian for the younger child, which is good. But their life insurance policy and retirement accounts still list “my children” as beneficiaries, with no trust in place. The result: a Suffolk County Surrogate’s Court proceeding to appoint a guardian of the property for the 12-year-old, court supervision of every dollar spent on her care until she turns 18, and a $180,000 lump sum handed directly to the 19-year-old the moment the estate closes — no structure, no guidance, no cushion for a mistake.

None of that was what these parents would have chosen. It’s simply what happens by default under New York law when a plan doesn’t go further than naming a guardian.

Whether your family is in Smithtown, St. James, and the surrounding Suffolk County communities, or in Syosset, Plainview, Jericho, and other Nassau County towns, planning for minor and young adult children requires three distinct pieces working together: a guardianship nomination for the person raising your child, a trust structure for the money supporting that child, and a realistic view of when a young adult is actually ready to manage an inheritance outright. Below, we walk through each piece — and a few others that Long Island parents frequently overlook. If you’d rather talk it through directly, you can schedule a consultation with our Smithtown office at (631) 406-5580 or our Syosset office at (516) 321-4010.

Why This Planning Matters

Every family’s situation is different, but the reasons to address minor and young adult children specifically in your estate plan tend to fall into the same core categories:

  • Someone needs legal authority to raise your children. Without a written nomination, a Suffolk or Nassau County court decides who raises your children if something happens to both parents — and that decision may not match what either of you would have wanted.
  • New York law doesn’t let minors inherit directly. A child under 18 cannot legally receive or manage inherited assets, own real estate, or be paid out from a life insurance policy or retirement account without a court-supervised guardianship of property, or a trust that avoids that process entirely.
  • Turning 18 doesn’t mean turning wise. An 18-, 19-, or 21-year-old receiving a six-figure lump sum with no structure is a common and preventable source of financial harm — to relationships, to opportunities, and sometimes to the money itself.
  • Blended and multi-generational families need extra precision. Without clear trust language, assets can end up with a stepparent’s side of the family, a former spouse, or in a sequence you never intended.
  • A child with special needs can lose government benefits. An inheritance paid directly to a child receiving SSI or Medicaid can disqualify them from benefits they depend on, unless a special needs trust is in place first.
  • Life insurance and retirement beneficiary forms can undo your will. Naming a minor child directly as a beneficiary — a mistake we see constantly — triggers the very court process a trust is designed to avoid.
  • Your children’s needs change, and your plan should change with them. A plan built when your kids were toddlers rarely still fits once they’re teenagers, in college, or starting careers.
  • Someone has to make decisions if you’re incapacitated, not just after you’re gone. Guardianship and trust planning address what happens after a parent’s passing, but families also need a plan for who steps in if a parent becomes incapacitated while children are still minors.

Each of these is addressed through a different piece of your plan. Let’s take them one at a time.

Naming a Guardian for Your Minor Children in Your Will

If you have children under 18, nominating a guardian is one of the most important — and most frequently neglected — provisions in your will. Under New York’s Surrogate’s Court Procedure Act (SCPA Article 17), a parent may nominate a guardian of the person and property of a minor child directly in their will. That nomination isn’t automatically the final word, but the Nassau County Surrogate’s Court (Mineola) and Suffolk County Surrogate’s Court (Riverhead) give it substantial weight, and in the vast majority of cases, it’s honored.

Without a nomination on file, the decision falls to the court, based on a best-interests analysis that considers relatives, the child’s own preferences if old enough, and any evidence of who’s actually been involved in the child’s life. That process can take weeks or months, during which your children’s living situation may be genuinely uncertain, and it can invite disagreement among family members who each believe they know best.

A few points we walk Smithtown and Syosset clients through when this section of the will comes up:

Name a first choice and a backup. Circumstances change — a sibling relocates, a relationship ends, health changes. Naming an alternate guardian means your plan doesn’t fail if your first choice is no longer available when it matters.

The guardian doesn’t have to be the trustee. Many parents assume the person raising their children should also control the inheritance. Often, the better structure is to separate the two roles: one trusted person focuses entirely on day-to-day parenting, while a different person (or a corporate trustee) manages the money and simply provides for the guardian’s household expenses. This isn’t a vote of no confidence in either person — it’s a way to avoid asking one individual to carry both burdens, and it adds a layer of accountability.

Talk to your nominees before you sign anything. A guardian nomination works best when the person you’ve chosen already knows, has thought through what it would mean, and has agreed. This is also the moment to have a candid conversation about parenting philosophy, religious upbringing, education, and where the children would actually live.

Revisit this provision as your family changes. A guardian who made sense when your children were in elementary school may not be the right fit a decade later — and the reverse is just as common.

Ready to put a guardian nomination in writing? Contact our Smithtown or Syosset office to get started — Smithtown: (631) 406-5580, Syosset: (516) 321-4010.

The Minor’s Trust: Protecting Assets Until Children Are Ready

Naming a guardian answers who raises your children. It does nothing to address how money set aside for them is managed. That’s the job of a minor’s trust — sometimes built directly into your will (a testamentary trust) and sometimes established as part of a revocable living trust you create during your lifetime.

Why not just use a custodial account? Many Long Island families are familiar with UTMA custodial accounts (Uniform Transfers to Minors Act) set up at a bank or brokerage. These accounts are simple, but they come with a hard deadline: under New York law, the custodian must turn the entire account balance over to the child, outright and with no further oversight, typically by age 21. There’s no flexibility for a young adult who isn’t ready, no ability to stagger the distribution, and no protection if that 21-year-old has a creditor, a lawsuit, or a divorce down the road.

How a minor’s trust works instead. Rather than assets passing directly to a child or into a custodial account, your will or living trust directs that any inheritance intended for a minor (or a young adult you don’t consider ready) flows into a trust instead. A trustee you select — again, not necessarily the same person as the guardian — manages those assets according to instructions you write now: paying for education, healthcare, extracurricular activities, and reasonable living expenses, while preserving the balance for the future.

This structure avoids the Surrogate’s Court guardianship-of-property proceeding entirely, which means faster access to funds for the child’s actual needs and no ongoing court accounting requirements for every expenditure.

Fund the trust correctly — this is where most plans fail. A minor’s trust only works if assets are actually directed into it. We routinely review beneficiary designations for life insurance policies, 401(k)s, and IRAs and find that a parent’s will was updated to include a trust for the children, but the beneficiary form for the life insurance policy still says “my children, equally” — bypassing the trust completely and sending the payout straight into a court-supervised guardianship. Every account with a beneficiary designation needs to name the trust (or, for retirement accounts, be structured with the trust’s specific tax treatment in mind), not the child by name.

Lifetime gifting can work alongside a trust. For parents who want to start funding a child’s future during their lifetime — for education or a first home down payment — annual exclusion gifts (currently $19,000 per recipient in 2026, or $38,000 for a married couple gifting together) can be directed into an existing trust rather than an outright gift, preserving the same protections.

If your family’s plan still routes assets to a minor by default rather than through a trust, that’s worth fixing now rather than after the fact — reach out to Fratello Law at (631) 406-5580 (Smithtown) or (516) 321-4010 (Syosset).

Understanding Maturity: Why Age 18 Isn’t a Magic Number

New York law treats 18 as the age of majority, and 21 as the typical cutoff for custodial accounts. Neither number has much to do with actual financial readiness, and most parents instinctively know it. Plenty of 25-year-olds aren’t ready to manage a six-figure inheritance responsibly; plenty of 30-year-olds are still building the judgment to do it well.

This is where a minor’s trust can extend well past childhood into what’s often called a young adult’s trust or a staggered-distribution trust. Instead of terminating at 18 or 21, the trust continues under the trustee’s management and distributes principal can be made in stages — for example:

  • One-third of the remaining trust balance at age 25
  • One-half of what remains at age 30
  • The balance at age 35

In the years between distributions, the trustee can still make funds available for education, a first business, a down payment, or a medical need, using discretionary standards you define. This gives a young adult meaningful access to support without handing over the entire inheritance before they’ve had the chance to develop the judgment to manage it — while a spendthrift provision protects the trust assets from a young adult’s creditors or an early divorce along the way.

We’ve seen the alternative play out too many times to recommend it: an inheritance paid outright at 18 or 21, spent within a few years on things that provide no lasting benefit, with nothing left when it might have actually mattered — graduate school, a down payment, a business opportunity, or a financial cushion during a layoff. Staggering distributions isn’t about distrust. It’s about giving money the chance to do what you intended it to do.

Beyond the Trust: What Long Island Parents Often Overlook

A few additional pieces round out a plan that genuinely protects minor and young adult children, and they’re worth raising with your attorney even if they don’t come up on their own.

Your 18-year-old needs their own power of attorney and health care proxy. The moment a child turns 18, parents lose automatic legal authority to make medical or financial decisions on their behalf — even for a child still living at home or attending college locally. If that young adult is in an accident or becomes seriously ill, a parent may be unable to speak with doctors or access records without a health care proxy in place, or to help manage finances without a power of attorney. This is one of the most common gaps we see in families with children heading off to SUNY, Hofstra, or any college away from home, and it takes very little time to fix.

Double-check every beneficiary designation, not just your will. As mentioned above, life insurance policies, 401(k)s, IRAs, and payable-on-death bank accounts all pass outside your will, directly according to whatever beneficiary form is on file. A trust in your will accomplishes nothing for an account that still names a minor child directly.

A child with special needs requires a separate structure entirely. If your child receives, or may in the future receive, SSI, Medicaid, or other means-tested government benefits, an inheritance paid directly to them — even through a standard minor’s trust — can disqualify them from those benefits. A properly drafted supplemental (special) needs trust allows you to provide for a child’s quality of life without jeopardizing the government support they rely on. This is a highly specialized area, and it should be addressed as its own conversation rather than folded into a general trust provision.

Blended families need extra precision. If you or your spouse have children from a prior relationship, generic language like “to my children” or “to my spouse, then to our children” can produce results neither of you intended — including a scenario where a surviving stepparent’s own children inherit everything, leaving your biological children with nothing. This requires deliberate trust and will drafting, not a template.

Revisit the plan as your children grow. A trust structure built when your children were in elementary school should be reviewed as they reach college age, start careers, get married, or have children of their own. What looked protective at age 8 may feel unnecessarily restrictive — or not restrictive enough — at 28.

If any of this sounds like it applies to your family, it’s worth a conversation before circumstances make the decision for you. Our attorneys work with families throughout Smithtown, Syosset, and the surrounding Suffolk and Nassau County communities — including through our dedicated Syosset estate planning practice — to build plans that reflect how a specific family actually lives, not a one-size-fits-all template.

Frequently Asked Questions

Do I need a trust if my children are already adults?

Possibly, yes. “Adult” and “ready to manage an inheritance” aren’t the same thing, and a trust can still provide staggered distributions, creditor protection, and divorce protection for adult children of any age. Many parents of adult children in their 20s and early 30s choose this structure deliberately.

Can I name different guardians for different children?

You can, though most families prefer to keep siblings together with a single guardian whenever possible, for stability. If you do name different guardians, your attorney can build in provisions to keep siblings connected regardless of where each one lives.

What happens if I don’t name a guardian at all?

A Family Court or Surrogate’s Court proceeding determines who raises your children, based on a best-interests standard. Family members are free to petition, which can mean a contested process at the worst possible time for your children.

Is a custodial (UTMA) account ever the right choice?

For smaller amounts — a few thousand dollars from a grandparent’s gift, for example — a custodial account can be a reasonable, low-cost option. For life insurance proceeds, retirement accounts, or any inheritance large enough to matter over a lifetime, a trust offers far more protection and flexibility.

At what age should trust distributions happen?

There’s no universal answer. Some families choose 25/30/35; others extend it further, or tie distributions to milestones like finishing a degree rather than a birthday. The right answer depends on your family and your children.

Does my child’s guardian automatically control their inheritance?

No, they do not need to be the same person. Separating the guardian (who raises the child) from the trustee (who manages the money) provides a built-in check and takes pressure off both roles.

How often should we update this part of our plan?

We recommend a review every three to five years, or sooner after any major life event — a birth, a move, a change in a guardian’s circumstances, a child turning 18, or a significant change in your assets.

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If your family is in Smithtown, St. James, Syosset, Plainview, or anywhere else on Long Island and your estate plan doesn’t yet address guardianship, a minor’s trust, and a realistic distribution schedule for your children, we’d welcome the conversation. Schedule a consultation with Fratello Law — Smithtown: (631) 406-5580 | Syosset: (516) 321-4010 — to talk through what actually fits your family.