If a minor child’s parents both die and there is no will, the court will appoint a guardian for your children. In the event you did appoint a guardian in your will, the court will usually go along with your choice during probate, though in some cases they may not, if they determine it’s not in the best interest of the children.

It is important to remember that the guardian will have custody of the child and the court will control any money or inheritance for the child. Requests for use of the money for the child must first be approved by the courts. This is a lot like conservatorship.

Let’s say that this child has an extraordinary talent for art. You, as a guardian, would like the young person to develop these talents to his/her fullest potential. You apply to the court for money for private art lessons, and to your surprise the court refuses. It considers art lessons unnecessary and frivolous spending.

Everything that a child needs, including education, art lessons, clothes, etc., must first be approved by the court. A list with all proposed items is usually submitted by an attorney for the costs appraisal. All this is very expensive and is paid through the child’s inheritance.

Again, like conservatorship, your family loses control. The courts make all final decisions in guardianship, which is very expensive and time consuming. There are many special circumstances not mentioned that can be unpredictable and contribute to depleting a minor’s inheritance.

If a divorced or separated spouse is still alive, the court will usually name them as guardian, even though this may not have been your last wishes. Only with a trust will you be able to make sure that your minor children are provided for without the court getting involved.