This is a very specific legal question which is probably a matter of practice/interepretation, and could theoretically have a different answer depending on the jurisdiction, but let’s say, “generally speaking”:
If a minor is willed property, it is my understanding that, generally, a guardian/trustee will have control over that property until the minor attains the age of majority or (where this is applicable) is emancipated. But is this an absolute rule that can in no way be mitigated? What if the decedent wants the minor to have control of some or all of the property before they attain the age of majority? Can they mandate in their will for the minor heir to have any right to enjoy or control any of their property?
I will describe two situations at opposite extremes to illustrate what I mean in practical terms not usually covered explicitly in statutes. In both, assume that the minor has not been emancipated by a court, etc.
At one extreme, imagine that a decedent leaves a house and wealth in their will to a minor. The decedent wants the child to have control of this property and enjoy it as they see fit before they turn 18 or whatever the local age of majority is, without needing a guardian’s approval. They state this in their will. Could such a requirement ever be binding/enforced? Or would the court be bound to ignore the decedent’s wishes and appoint a guardian who would have complete control over the property, potentially against all the heir’s wishes, until the heir reaches adult legal capacity? (If anyone were to ask “why” the decedent would want the heir to have the right to control the inheritance while still a minor, I would say that’s not relevant to the question per se, but if one were still interested in having an idea of the “why”, I would suggest two possibilities: either the decedent genuinely believes their child mature enough to handle such affairs, or the decedent disagrees on a personal level with conventional wisdom and doesn’t believe in placing restrictions on a child’s freedom “for their own good”, feeling that as the owner of the wealth, they are entitled to dispose of it as they see fit, don’t care if their wealth potentially gets squandered, and would rather gratify their child’s immediate happiness than think in the long term and make the child wait until they are 18 to take control of the wealth, no matter what most of society thinks of the wisdom of this choice, and damn the consequences.)
If the extreme I have described above were legally impossible (I.E. that an adult trustee would always be appointed, even if the testator were to request in the will that the minor be allowed to take personal control of the property), could some kind of binding compromise be reached? For example, could the testator lay down (in a manner binding upon the adult trustee), that while the trustee would administer the estate (e.g. pay the bills and take a fee for this administration), and that while the minor could not alienate most of it, that the minor would be allowed to use the house for ordinary personal use? And/or that the minor would be given a set monthly allowance from the inherited wealth that the trustee could not control and that the minor could spend as they see fit?
Now let’s go to a completely opposite extreme. Let’s say a 40-something adult such as myself has some old toys from their childhood: a few stuffed animals and a small collection of played-with, time-worn Transformers, G.I. Joes and Ninja Turtles from ca. 1987-8. So objects that are a) very kid-appropriate and b) of extremely low intrinsic value - not, as in the above examples, a fortune that conventional wisdom would dictate is worth preserving intact until the heir reaches a certain maturity in order to be of benefit to the heir long-term. The owner of these has an 8-year-old son. Being terminally ill, he writes a will stating that he leaves all his childhood toys to his son, without any further stipulation. In practice, what would then happen to these old toys? Would the executor hand them over to the 8-year-old? Hand them over to the guardian of the 8-year-old’s person to give to the boy at the guardian’s discretion? Or would a trustee of the child’s property (as in points 1) and 2) ) pack the toys up somewhere and give them to the child on turning 18, when the boy would be far less likely to have any use of them? Could the boy’s father have stipulated in the will that the toys be given to the boy immediately upon the will coming into effect, and would this be any more binding on the trustee of the minor’s property than in the case of real property/monetary assets of major value, or would the trustee have as much control over such kid-appropriate property of little value as over a house or monetary instruments in the bank?
This may be different in difference states (but I don’t believe so). In my state:
#1: Absolutely not. A person who has not reached the age of 18 (and not emancipated by court order–this qualification applies to everything I am saying) is under a legal disability to be unable to handle his or her own financial affairs and life choices. The child requires a guardian or trustee to handle those affairs. You may leave specific instructions to the trustee such as that he or she may not sell the property and must preserve it for the child when he/she turns 18. You may allow the trustee to use the money for reasonable medical and educational expenses and other specific things. But you may not just tell the trustee to do whatever the child asks. The trustee has a fiduciary duty to the child to preserve and augment the trust estate for the benefit of the child. Doing whatever the child asks would be a breach of that duty.
#2: The last part no. You could instruct the trustee that the house is for the use of the child, that the child may live there. But the child’s guardian will ultimately decide, in the best interests of the child, where the child will live. You may not parent from the grave. And the portion where you are saying that the child has $X per month to do as he or she pleases violates #1. The guardian controls the child’s expenditures because the child is legally incapable of making that choice. If the guardian respects your wishes and allows the child to spend $X per month as the child requests, and you have given permission for the guardian, in his or her discretion to do that, then that is no different than a living parent allowing it. It couldn’t be binding on the guardian. This assumes a rather small portion of the overall estate which will have a minimal effect on the corpus of the trust.
#3: In theory it would likely be upheld generally to instruct the guardian to allow the child to play with the toys. But it wouldn’t be fully binding. Imagine if the child didn’t do his homework or cursed out his guardian or told the nice elderly neighbor lady to go fuck herself. The guardian needs to have the flexibility to take away those toys as punishment, either for a short time or a long time. You can’t parent from the grave.
The overall questions in your post illustrate a scenario that is simply against public policy. If you are alive, you can be a permissive parent and allow many if not all of these things. That is your choice within reason. If you are dead, you can’t parent from the grave. Another person will either be selected by you or appointed by a court to be the new guardian for the child. That person must have the flexibility that you did to respond to changing circumstances in the child’s life for that child’s best interests, even if that might be different from the way you would do it if you were alive. Your dead hand cannot possibly foresee future scenarios in which you, if alive, would change your parenting philosophy.
This isn’t like a parcel of land where if you put restrictions on it within the Rule Against Perpetuities that only a minor societal inconvenience might happen. You could seriously financially and morally harm this child who needs a living guardian to guide him or her until the time the law recognizes that he or she is capable of making rational decisions.
I wonder if a will might guarantee that an orphan will never have a deceased parent’s dogtags or other special memento taken away as punishment.
On the other hand, don’t you usually name the trustee or guardian in your will? Maybe these kinds of considerations are supposed to be between you and the person you choose to raise your child after you are gone.
I think that would be analyzed in the same way you would a nuclear family. Suppose a mother and father and children. The father is killed in combat. May the mother take away the father’s dog tags from the children as punishment? The guardian merely steps into the place of the deceased parents.
It seems like a pretty terrible form of punishment but not one that rises to the level of child abuse such that the state should get involved. Not to repeat, but when you are alive, you have a large degree of control over the upbringing of your children. Such things do not survive death as a living guardian must be able to respond to changing circumstances and parent the child.
Yes, you may name a proposed guardian in your will. At least in my state it requires court approval and the judge will bend over backwards to appoint the deceased’s choice of guardian. But if the guardian is manifestly unfit, it will be denied.
To add, the major difference here that is missed is that if you have an extra million dollars lying around and want to allow the child to piss away your money, then that is a free choice for you to do what you want with your money. If you die and pass the money onto your child, then that is now the child’s money, and the law requires a competent adult to manage that money because the child is legally incompetent to spend his or her own money in what the law considers a responsible way.
I read the OP over and over - and I can’t find anywhere that it states the minor is an orphan. Meaning that “the guardian” would most likely be the other parent. I cannot imagine that public policy would allow one parent to dictate from the grave what the other parent must allow - and as mentioned, if there is a non-parent guardian appointed that guardian steps into the parents’ place. I mean, maybe Mom/the guardian has an objection to allowing the kids to play with the toys dad left them - not likely to be the case with stuffed animals , but possible if Dad left them his Jarts set from the 70s or his toy guns. I can’t imagine that there is some principle that forces her to do so after Dad dies.
The courts don’t want to get involved in the day to day decisions of raising a child and will make sure an appropriate guardian is assigned to look after the best interests of the child. The provisions of the will get thrown out the window.
I’ve had clients that wanted to put all kinds of crazy stuff in their wills. I talked them out of most of it by explaining there would be no way to enforce those provisions. Once a probate case is closed, the court is not going to make any effort whatsoever to monitor what happens next. To enforce some whacky provision like that in the OP, someone would have to petition the court to reopen the case. You would have to have standing to do so and who would have standing other than the minor? But what if the minor’s guardian disagrees? Sounds like a great big mess.
On a side note, depending on the context, the term guardian includes parent. Parents are considered the natural guardians of their minor children unless their authority has been removed by the courts.
I recall cases where family members had no trouble being named guardian of a minor child with no parent. IANAL but the way these cases were reported made it sound like a common move to name grandparents, aunts and uncles as guardian. I’m sure the legal details could be more complicated but it makes sense for the courts to strongly consider close relatives as having the necessary standing.
I am assuming this is a minor who is not near to majority age who could petition to be emancipated or simply get representation and stall the proceedings.
ETA: There are probably not a lot of cases with enormous estates left to minors without parents but it can’t be that uncommon for the estate to consist of a house with substantial equity and some retirement savings.
I didn’t mention the other parent to keep things simple. The child in my example could be an orphan, or they might not be. You’re right that the guardian of the person of the child (either the other parent or, in their default, a different family member or other court-appointed guardian) could eventually do things like prevent the kids to play with Jarts or what have you, but the guardian of the child’s person is not automatically the guardian of the child’s property in all jurisdictions. In Ontario, for example. There are cases, again depending on the jurisdiction where it’s not a child’s parent or other guardian bringing them up, who also administers the child’s property.
My first thought was, why doesn’t the parent just hand the toys over to the kid before he kicks the bucket instead of hassling about them in a will?
But that made me wonder. Do children legally own anything? In casual conversation we talk about X belonging to Billy, but does it really? Can’t Billy’s legal guardian confiscate his stuff after the parent dies anyway, either for punishment or he thinks the kid really shouldn’t have a Jart set?
I know I got a bicycle for my birthday one year – it was given to me, with an official bow and everything and was referred to as ‘mine’ – and yet some time time later I had the use of it taken away from me for several weeks due to my having done certain actions.
Basically, parents can (as least temporarily) take away anything the kid ‘owns,’ right? Even it it was a situation like the kids saved up all the money he made mowing lawns to buy some game system. The parent can still confiscate it, right?
I don’t think it would be correct to say that children “don’t own anything”. However, we should distinguish between real estate/major monetary assets and moveable property:
Unemancipated minors can own and inherit real estate, monetary instruments and large funds. However, as mentioned above, such assets are normally administered by a guardian (not the child’s parent or other guardian of the person in all cases, but in some cases a trustee appointed specifically for the purpose of managing the child’s assets) until the child comes of age or becomes emancipated (where this is allowed by law, typically by court order). In the case of real estate, in some jurisdictions the land registry keeps the record of ownership in the minor’s name (perhaps with a note about the guardian), in others in the guardian’s name until the property is released to the minor on reaching adulthood. However, the property belongs to the minor in all cases; the guardian/trustee always only holds and administers it in trust. While the guardian may have the right to sell the property where deemed necessary, this may need a court order and should not be done except to benefit the minor’s estate/interests, plus, as a general rule, the end goal is to keep the property value intact while the owner is a minor.
In the case of personal property, the situation seems to be more iffy. We all know that parents often resort to taking personal possessions away from a child as punishment, as well as due to what the parent believes is for the child’s own good or not. This doesn’t necessarily make the parent the owner of all the child’s possessions - it’s more a question of the parent’s authority to direct the child’s upbringing. I don’t know whether there are any statutes anywhere in North America regulating the ownership of personal property by minors/their parents; it’s more likely a matter of interpretation of common law. I have read the claim (mostly in American sources) that things given to children by their parents remain the parents’ property, whereas things earned by children or given to them as gifts by others are the child’s property, but highly doubt that this is an absolute rule (or more than an interpretation - I don’t know of any court cases that would test these classifications). I also find it a little difficult to believe that the law would somehow put a parent under disablity as to making a gift of movable property to their child of the parent’s own free will. I have also read an opposite interpretation (specifically referring to Ontario), namely that things given to you for your own use by your parents are yours (as gifts) and that you have the right to take them with you. I should mention, though, that this was written in the context of leaving home when legally able to do so of your own free will (I.E. at 16 in Ontario). I know that much - what I don’t know is if the principle has ever been tested in court in any jurisdiction. I also wouldn’t exclude the hypothetical possiblity of a minor suing their parents for property taken away from them, though AFAIK such litigation is extremely rare and in most jurisdictions, a minor needs a “guardian ad litem” (called differently in some jurisdictions) to file a lawsuit; this is generally any competent adult willing to speak for the child. In some jurisdictions, where an adult friend is not found who is willing to represent the minor’s interests, the child may still be allowed to file the suit and the court may be able to appoint a guardian ad litem (in Ontario, this could be an official of the Ministry of the Attorney General, e.g. from the Office of the Children’s Lawyer). Having no specific examples to go from, I will say only that much and will refrain from speculating as to whether any court would ever order a parent to hand over a piece of property to a child or whether the judge would be likely to simply dismiss the case (I do know of two cases where a court upheld a child plaintiff’s wishes against those of a parent and one where a court reached a compromise, but will not elaborate on those in this post, and neither concerned a matter of property).
Where does the age at which a person can enter into contracts come into this?
If little Billy inherits a house or a Porsche, can he legally sell it? If some buyer is stupid enough to agree, can Billy come after the buyer when he turns 18 and demand it back since he could not previously legally consent to such a contract? Will a company issue credit cards to a minor without an adult co-signer? How did those joint-signature accounts for children work when debit cards come into play? Can a minor sign a cellphone contract, or does that too require an adult co-signer?
I see assorted legal obstacles to any attempt to allow a minor to basically run their own financial life.
(As someone without kids, I never had to worry about these details…)
Usually minors can only void a contract while still within the age of minority. And contracts providing necessities are not generally voidable (eg: food, clothing, shelter).
Generally, yes, but voidable doesn’t mean a windfall for the minor child.
Imagine a 16 year old who pays $5,000 for a work of art. The child can void that contract and the $5,000 must be returned. But the child must also return the work of art. If a child pays the neighbor boy $20 to cut his parents’ grass and the neighbor boy does it, the very nature of that contract makes it non-voidable.
I also disagree with the general proposition that food is always a necessity. It is more complicated than that. If a 16 year old goes through the drive thru at McDonalds on his way to school, a court won’t assume that the child was near death from starvation if he didn’t get his bacon, egg, and cheese biscuit, and the child could not (after he ate the biscuit) just walk back in and demand his money back in an attempt to void the contract. It would be an unjust enrichment.
It is not a situation where the child can keep all of the benefits but none of the burdens.
Of course there’s the question of whether you’re even the person who designates such guardians. If I left money to a niece or nephew, I have no say in how the kid’s parents raise the kid.
I imagine I might write my will in such a way that there’s an incentive for the parent to comply with my wishes, e.g. “I will my GI Joe collection to Bobby Junior, and I will my 10,000 dollars to Robert Senior with the proviso that he give GI Joe to his son immediately; if he does not do so, then this is tantamount to declining that 10,000 bequest”.
I’d hate to be the executor handling that, though.
I’m not sure that allowing Billy to make the decision to sell the house or the Porsche necessarily means that Billy is the one signing the contract. Billy is going to have a custodian or guardian who will actually handle the sale- who makes the actual decision about whether to sell the house or car is a separate issue. I mean , if 17 year-old Billy wants to sell the house in June so he can buy an condo near the college he will start attending in September, I’m sure that there’s a way he can do it even if it involves getting a court order to force the guardian/custodian to sell the house and buy a condo. I’m equally sure 6 year old Billy would not be able to make that decision in any sense.
That was question, basically. Can Billy do this himself, or do major decisions need a guardian’s cosign? I see a lot of forms that have room for “parent or guardian”.
Yes. This will have to be ratified by a court who will appoint a guardian ad litem, an attorney, who is to act not for Billy, but for Billy’s best interests. If it is clear that Billy’s condo near the college where he wants to live is in his best interests, then that will be happily signed off on, with the judge talking to Billy about his college and wishing him the best of luck.