Tools for Parents of Minor Children - Austin Estate Plan

Approximately three-fourths of Americans do not have a basic will.^[1] Many of the same people also have children under the age of 18, which underscores a major misunderstanding about estate plans: They can accomplish much more than just handling financial assets (money, accounts, and property). One of the most important estate plan functions for parents of minor children is the ability to provide specific guidance about how their children will be cared for and who will care for them in case something happens to the parents. To account for all emergency contingencies concerning you and your minor children, your estate plan should form a comprehensive safety net that addresses your children’s care needs and protects them from the unthinkable.

Four Tools You Need If You Have Minor Children

As parents, we instinctively strive to shield our children from harm and set them up for success, now and in the future. While we cannot predict the future, we can prepare for it. Estate planning is a crucial step in this preparation, especially when minor children are involved. It is not only about distributing your money and property after your death; it is also about establishing ways to care for your children if you no longer can.

Your death or incapacity (inability to manage your affairs) from a sudden illness or accident is a situation that you would likely rather not think about but must consider in preparing for worst-case scenarios that could lead to a court deciding who cares for your child. Data on parental mortality is sobering: More than 4 percent of minor children have lost at least one parent.^[2] If you wait too long to create your estate plan, it could be too late. More than any other reason, Americans cite procrastination as the reason they do not have an estate plan.^[3] Procrastinating on creating your estate plan could mean it will not be there when you—and your children—need it.

To safeguard your children’s future, four estate planning tools are particularly important: a will, a power of attorney for minors, a standalone nomination of guardian, and potentially a revocable living trust.

Last Will and Testament

A last will and testament (also known as a will) is a cornerstone of any estate plan, but it takes on added importance when you have minor children. Your will outlines your wishes regarding the distribution of your money and property after your death. It can also allow you to do the following:

Name a guardian. A guardian is the person you want to raise your minor children if you and the other legal parent are deceased. The most common choice of guardian is a close family member, such as grandparents or siblings, or a close family friend. One thing to remember, probate is a legal proceeding, and can take time. This timeline can be at odds with the need to establish guardianship for your minor children. We recommend speaking with your estate planning attorney on where best to name a guardian for your minor child.
Establish an inheritance for your children. Because minors cannot directly inherit money and property over a certain limit set by state law, there needs to be a way to handle their inheritance for them until they reach legal adulthood. A testamentary trust (one that is created in a will) can be a safe way to set aside money and property for your minor children. The terms of the testamentary trust allow you to name a trustee to oversee the inheritance. Another benefit of a trust is that you can determine when the children receive their inheritance and how they will receive it.
Name an executor. An executor (or personal representative) is the person you designate to carry out the instructions in your will, including managing your estate and distributing your money and property. They might work closely with the guardian and the trustee to ensure that your instructions are executed smoothly and according to plan. The same person may serve in more than one role in your estate plan (e.g., guardian and trustee, guardian and executor).

Power of Attorney for Minors

A power of attorney for minors, or what’s known in Texas as the Authorization Agreement for Voluntary Adult Caregiver, is a legal document that empowers a chosen individual (your agent or attorney-in-fact) to act for your minor child on your behalf. This person steps in to make decisions regarding your child’s care if you become incapacitated or unavailable.

The power of attorney can grant the agent broad authority to handle various aspects of your child’s life, including the following:

Healthcare: making medical decisions, consenting to routine treatments, and accessing medical records
Education: enrolling your child in school, making educational choices, and attending school meetings
Finances: managing your child’s finances, including accessing bank accounts and applying for benefits
Daily care: meeting your child’s food, shelter, clothing, and other basic needs

The main goal of this document is to allow the Caretaker to ensure the child is enrolled in school and receiving medical care. However, there are limitations to this Agreement’s power. Meaning, the Caretaker cannot consent to the child’s marriage or adoption, and the rights of the parent are not terminated by the use of this document. In addition, many state laws impose expiration dates on these documents (e.g., six months, one year), so it is important to review and update them regularly to ensure that they remain valid.

Standalone Declaration of Guardian

While a power of attorney or Caretaker Agreement addresses temporary situations, such as short-term incapacity or extended travel, a standalone declaration of guardian document focuses on the long-term care of your children in the event of your death or incapacity. Without a designated guardian, a court will decide who cares for your minor children. The guardianship process can be lengthy and uncertain and could potentially result in the appointment of a caretaker you would not want gaining custody of your kids.

Additionally, a standalone Declaration of Guardian (as it is known in Texas) also allows for the naming of “Temporary Caretakers,” which is a person your children can stay with if your named nominated guardians live out of town. This allows your children to remain with people they know and trust, rather than being placed with strangers.

Revocable Living Trust

In addition to a power of attorney, declaration of guardian, and will, the parents of minor children might consider a revocable living trust that holds their accounts and property during their lifetime and distributes them after their death.

You (the parent) maintain control of the accounts and property in the trust while you are alive as the current trustee. You can change the trust’s terms as needed because you are the trustmaker (known in Texas as the Grantor), and this type of trust is revocable. A revocable living trust can help avoid probate and give your children faster access to the resources they need. You can also specify how and when your children receive their inheritance, name a successor trustee to continue management of the trust if you suffer incapacity, and provide financial support for the guardian, further synergizing your estate plan.

How These Tools Work Together—and What Can Happen If You Do Not Plan

These estate planning tools are not interchangeable; they are complementary and designed to work together to address immediate and long-term needs in a range of potential scenarios.

Imagine a scenario where both parents are in a car accident. One parent dies, and the other is severely injured and temporarily incapacitated. The agent named in the temporary power of attorney or delegation of standby guardian immediately steps in to temporarily care for the children. If the injured parent passes away, the designated guardian (who may be the same person as the agent under the temporary power of attorney) named in the will or standalone document can provide the children with a stable permanent home. The will can be structured so that the children’s inheritance is managed through a trust that specifies how and when their inheritances should be spent and distributed.

Failure to have any one of these estate planning tools can lead to complications and unintended consequences for your minor children. For example:

A missing temporary power of attorney could lead to delays in, or the inability to, make emergency decisions about medical treatment.
A missing guardian nomination document could lead to a court choosing a guardian you would not have chosen. Ostensibly, the choice a judge makes will be in the child’s best interest, but do they really know your child and family dynamics well enough to make this choice?
A missing will can also lead to a court appointing a guardian who is someone other than your first choice. In addition, your children may not receive the inheritance you intended in the way that you intended, and you lose the ability to specify how your money and property are used for their benefit. Further, they will end up getting what is left of their inheritance outright when they reach the age of majority (18 or 21, depending on the state).

Other Planning Tools and Tips for Parents of Minor Children

Parents should understand that they can only nominate a guardian for their child, not legally appoint one; the court has the final authority to decide, though it gives significant weight to the parents’ nomination. If there is evidence that your chosen guardian is unfit or unable to provide proper care, the court may appoint a different guardian in the child’s best interest, even if it goes against your wishes. There is also the chance that a family member could contest your guardianship choice or your first choice of guardian is unavailable.

These outcomes are unlikely, but since they could undermine your wishes, here are additional steps you can take to minimize the risk and strengthen your case:

In a separate letter, sometimes referred to as a letter of intent, clearly state your choice of guardian and provide a detailed explanation of why you believe this person is the best fit. Speak to their qualifications, relationship with your children, and ability to provide a stable and loving home.
Name alternative guardians in case your first choice is unable or unwilling to serve.
To prevent misunderstandings and reduce the likelihood of a challenge, have open and honest conversations with family members about your guardianship decision. Explain your reasoning and address any questions or concerns they may have.
Have your will or separate guardian nomination form properly executed according to your state’s laws. To be legally binding, they may need to be witnessed and notarized and meet other requirements.

Fitting Together the Pieces of Your Estate Plan

Each part of an estate plan has a role to play, but they work best when considered as parts of a larger plan that addresses big issues such as the well-being of your minor children. A will, temporary power of attorney, and standalone guardian document are not interchangeable; they are complementary. Incorporating all three into your plan, alongside other strategies such as a revocable living trust and a letter of intent, addresses the immediate and long-term needs of your minor children in any eventuality.

If you have minor children, estate planning is a necessity. Do not leave your children’s future to chance. If you’d like to consult with an estate planning attorney to create a multipoint plan that protects you and your family, please contact us. Nielsen Law PLLC provides family-focused estate and business planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. We look forward to working with you.

^[1] Victoria Lurie, 2025 Wills and Estate Planning Study, Caring (Feb. 18, 2025), https://www.caring.com/caregivers/estate-planning/wills-survey.

^[2] George M. Hayward, New 2021 Data Visualization Shows Parent Mortality: 44.2% Had Lost at Least One Parent, U.S. Census Bureau (Mar. 21, 2023), https://www.census.gov/library/stories/2023/03/losing-our-parents.html.

^[3] Lurie, supra note 1.