Gifting Assets for Minor Children & Grandchildren
There are many situations where it may be wise to give assets to minor children without interference from other family members, adults, or creditors. For example, you or your adult children may be going through a divorce or anticipating a family division, and are concerned about providing for your children. Maybe you are making estate plans and want to specifically set something aside for your grandchildren to inherit, but don’t want them to deal with the probate process. Or maybe you are concerned that if you earmark funds for grandchildren in the custody of your child or son/daughter in law, that your child will spend it or use on something you had not intended. One method for providing for minor children is creation of a custodial account for the minor’s benefit.
What is a Florida UTMA Account?
The Florida Uniform Transfer to Minors Act governs the creation of a custodial account for minors. A custodian is named in care of the account until the minor reaches age 21. Funds placed into the trust account are irrevocable, meaning they cannot be changed, added to or withdrawn by anyone but the minor when he or she reaches 21 and is no longer a minor child Fla. Stat. 710.111 (2020). Even though an adult custodian is in care of the account in the meantime, the property, assets or money placed into the UTMA account remains the sole property of the minor child beneficiary. Assets within the account cannot be withdrawn by a minor child’s parents or used to pay child support or debts owed to creditors. If you owe debt yourself but still want to set something aside for your child, niece or nephew or grandchild, the safest and most secure way to do so is by utilizing a UTMA account. Simply earmarking funds in your savings account doesn’t protect the funds from creditors, even if intended for a child beneficiary when you pass on.
What about Totten Trusts?
A Totten Trust is a payable upon death bank account designed to be allocated to beneficiaries upon the death of the benefactor. While creating a Totten Trust does avoid the probate process, it may not be the best option for gifting assets or money to a minor child. Because the benefactor still has access to the bank account intended for the minor, theoretically the benefactor could withdraw funds in an emergency or for another purpose, effectively lowering the total amount he may have originally intended to bequeath to a minor beneficiary. Also, because the benefactor retains control over the Totten Trust until death, if he or she were to go into bankruptcy, creditors could attach what funds are in the Totten Trust, because it is essentially just a custodial bank account, not an irrevocable trust. This is why one of the most secure ways to guarantee a gift to a minor child after your death is to create a UTMA account.
Call our Tampa Trusts & Estates Attorneys at Bubley & Bubley, P.A.
Creating a trust can be intimidating. You want assurance that you are choosing the right instrument to provide for your loved ones while avoiding taxes and probate expenses. If you have questions about creating a trust or providing for a minor after your passing, call the Tampa estate planning attorneys at Bubley & Bubley, P.A. With nearly three decades of experience serving clients, our team would be glad to provide guidance to you as you begin the estate planning process. Call today to schedule a consultation.
Resource:
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0710/Sections/0710.111.html
https://www.bubleylaw.com/probate-the-insolvent-estate/
