After four months of precious bonding time with my new baby, I’m back at the firm and have returned to my fulfilling career as an estate planning and probate attorney. Having a second child changed my life just as much as having my first child changed my life. Before having each child, as an estate planning attorney I thought I had everything figured out: who the guardians of my children would be, how I wanted my assets distributed to my children should I no longer be around… but, of course, plans change when you have children, and it is important to recognize how such plans—including an estate plan—can change after having children. 

If you recently had a child or you already have children, it is important to include them in your estate plan. Estate planning plays a pivotal role in ensuring that your children are provided for in the event of unexpected circumstances. 

If you have already included your children in your estate plan, it is just as important to review and update your estate plan as your children get older because the plan you made five or ten years ago may not reflect your wishes now. This is especially true if your child is now an adult or if your child has developed a disability and is receiving needs-based government benefits.

 

Here are five ways having children affects your estate plan:

1.Naming a Guardian for Your Child

It is imperative that you name a guardian for your child in the event that you and the other parent die or become incapacitated. A guardian is someone who will take legal responsibility for your child’s physical well-being. A guardian has the authority to make all decisions regarding the care of your minor or incapacitated child, including healthcare decisions, residence, education, and religious upbringing.

You typically name a guardian in your Last Will and Testament to have custody of your minor or incapacitated child. Upon your death and the death of the other parent, the guardian you named will need to go through the court process to confirm their guardianship. The court will evaluate whether the proposed guardian is suitable and whether it is in the child’s best interest to be in the guardian’s care.

Once you name a guardian for your child, you should review your estate plan periodically to determine whether the guardian you picked is still a good fit. Who you thought you wanted to be the guardian of your child may change as your child gets older. Have you moved a significant distance away from the guardian you named? Has the guardian spent time with your child and developed a good, stable relationship with them? The answers to these questions may prompt you to change the guardian you chose.

2. Creating a Parental Appointment of Temporary Agent

Now that you have named a guardian, you should create another estate planning document called a Parental Appointment of Temporary Agent, or PATA for short. 

I’ve mentioned that a guardian named in your Will must go through a court process to be appointed, and that this court process can take a long period of time. What happens during this time that your guardian is waiting to be appointed by a court? Or what happens if you are in the hospital or otherwise incapacitated? Who takes care of your child and makes decisions for them? 

Massachusetts law allows parents of a minor or incapacitated child to designate through a PATA a temporary agent to take care of the child for up to 60 days. This temporary agent has the power that the parent had regarding care, custody, or property of the minor or incapacitated child until a permanent guardian or conservator is appointed by the court. 

Keep in mind that you and the other parent must appoint a temporary agent together unless the other parent consents to the appointment in writing or the other parent’s parental rights have been terminated. Also, keep in mind that like the guardian you named in your Will, you should review your estate plan as circumstances change and your children get older to determine whether the temporary agent is still a good fit.

3. Providing for Your Child in Your Estate Plan

Having a comprehensive Will is the cornerstone of any estate plan, especially for young parents and families. As I mentioned earlier, you can designate a guardian for your minor or incapacitated child in your Will. Your Will also specifies how your assets will be distributed to your child; however, it is important to note that your Personal Representative cannot distribute funds over $5,000 directly to a minor child.

In Massachusetts and many other states, minors under the age of 18 cannot assume control of property given directly to them through an inheritance. If you leave money or assets to your minor child through your Will and you do not specify how those assets are handled, then a conservator will need to be appointed by a court to manage the funds.

This can be avoided by establishing a trust for your minor or incapacitated child. A trust can manage and protect your child’s inheritance and be tailored to your preferences, specifying when and how your child will receive assets. You can also name a Trustee to manage the trust assets on behalf of your child. The Trustee may be a family member or friend, professional fiduciary (attorney or accountant), or corporate fiduciary (such as a bank).

Trusts aren’t only for minor or incapacitated children. You can create a trust for an adult child at your death to manage the child’s inheritance for a period of time, such as until the child turns 30 years of age, or for a child’s lifetime through a so-called “lifetime trust share.” A lifetime trust share helps protect a child’s inheritance from their creditors, such as a divorcing spouse or someone who initiates a lawsuit against your child. Although the protection offered by a lifetime trust share is impacted by the identity of the Trustee, the way the Trust is administered, and the state in which the beneficiary resides, these shares are a great tool to increase the protection of inherited assets in the event of divorce or from potential creditors.

4. Needing a Supplemental Needs Trust for a Disabled Child

While on the topic of trusts, if your child becomes diagnosed with a significant health issue or disability, you should consider whether you need to have a special type of trust called a Supplemental Needs Trust as part of your estate plan. A Supplemental Needs Trust (“SNT”) provides long-term management of the inheritance you leave to a disabled child while allowing the child to qualify for needs-based government benefits should such benefits become necessary for them in the future. SNTs can pay for and supplement medical and travel expenses, entertainment, pet care, and other expenses that can enhance an incapacitated person’s quality of life, especially when parents or grandparents are no longer around. 

5. Considerations As Your Child Becomes an Adult

Soon enough, and all too quickly, your child will grow up and become an adult. When that happens, there are different considerations for your estate plan than when your child was a minor. You may consider naming your child in a fiduciary role, such as your attorney-in-fact under your Durable Power of Attorney, your healthcare agent under your Health Care Proxy, or even the Trustee of your trust or a trust you create for your child after your death. Although a child who is a beneficiary of a SNT cannot be their own Trustee, your adult child can be the Trustee or Co-Trustee of their own separate trust share if you believe your child is mature enough to do so.

On the other hand, what if your child is not mature enough to handle their own Trust? Is your child on the brink of a messy divorce, or does your child spend every dollar they make the minute they receive it? You can name someone else to handle the inheritance you leave to your child or otherwise specify exactly how you want your child’s inheritance handled after your death.

There are numerous other considerations as well, such as whether you would like to provide for a grandchild in your Will or Trust or whether your child has moved far from home and retaining the house after your death is no longer be feasible. 

These are tough decisions that require thoughtful consideration and planning. As you have children and your family grows, the last thing you want to think about is what happens to your child if you are no longer around. Unfortunately, life is unpredictable, and taking proactive steps now will provide peace of mind knowing that you have taken care of your child’s well-being, no matter what the future holds. Estate planning is crucial in securing your child’s future and addressing the unique needs of your family, particularly as those needs change over the course of you and your child’s lifetimes.

Attorney Brittany Hinojosa Citron is a senior associate attorney with the law firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of trust and estate planning, estate settlement, and elder law matters. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. 

July 2025

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