Rights of a Legal Guardian if the Child Is a Trust Beneficiary

By Christine Funk, J.D.

Rights of a Legal Guardian if the Child Is a Trust Beneficiary

By Christine Funk, J.D.

When a child is a trust beneficiary, the rights a legal guardian has depend on a few factors. Before beginning the discussion, it is a good idea to define the terms.

Little girl sitting outside with her mother writing in a book

Legal Guardians

A legal guardian is a person to whom a court has legally given the responsibility of raising another person's child. Typically, this happens upon the death of the parents. However, it can also happen if the child's parents are deployed overseas or are otherwise unable to care for the child themselves.

When a parent establishes a will or a trust, they can name someone they trust as the legal guardian for their children in the event that they die before the children turn 18. However, courts are not bound by this decision. In some cases, a court appoints someone other than the person the parent selected. If the other parent is still alive and retains parental rights, they generally raise the child, barring rare circumstances. If the designated legal guardian is not capable of raising the child due to chemical dependency issues or mental illness, the court selects another guardian. When evaluating the legal guardian role, courts make decisions based on the best interests of the child.

Trust Beneficiaries

A trust beneficiary is someone who benefits from a trust. Typically, when someone dies, their property passes to their beneficiaries. However, children cannot receive property or assets the same way adults do. Instead, the assets go into a trust. The person designating the assets for the children to receive can draft a revocable living trust or create a trust within a will. The assets in the trust then pay for the child's needs according to the terms of the trust. They may designate the money for summer camps, college tuition, or simply for the general care and feeding of the child. In some instances, the child has no access to the money in the trust until they reach a certain age. It may be 18, or it may be 25, 35, or even 50, as designated in the will or living trust.

Trustee

A trustee is someone who manages the assets in a trust. This may include managing property as rental property, making decisions about upkeep and repair, updating the kitchen, and installing a new roof. It may include making financial investments in the stock market. Trustees are also in charge of disbursing money from the trust, consistent with the terms and conditions detailed in the living trust or will.

Choosing Legal Guardians and Trustees

In some cases, the legal guardian is the trustee. However, a scenario in which the legal guardian is also the trustee gives a single person a great deal of power and control. Many lawyers recommend choosing different people for the roles of legal guardian and trustee. A legal guardian should be someone with whom the child is comfortable. They should also be someone interested in and capable of raising another person's child. In other words, it is probably not a good idea to identify the 83-year-old grandmother as the legal guardian of a 3-year-old.

A trustee should be someone who has the time and ability necessary to manage the finances of the child. This requires someone who is financially astute and aware. They should also be willing to commit the time and resources necessary to care for the child's money and other assets until such time as they can care for the assets themselves.

Consider the relationship between the legal guardian and the trustee. Because the trustee has the ultimate decision-making authority over the spending of the funds in the trust, and because the legal guardian bears the responsibility of raising the child, it is a good idea to make certain the legal guardian and the trustee are capable of communicating with each other. They will work together until the child reaches the age of inheritance.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.