Jen and Marcus, parents of two young kids in Orlando, had life insurance, a mortgage, and a vague plan to write a will eventually. Then a car accident on I-4 sent Jen to the hospital and forced an uncomfortable question: if something happened to both of them, who would raise their children, and who would manage the money? They had never written it down. In Florida, that omission hands the decision to a judge who never met them.
Why the Court Gets Involved by Default
If both parents die without naming a guardian, a Florida court decides who raises the children based on its view of their best interests. Well-meaning relatives may disagree, sometimes bitterly, and the process plays out in front of a judge during the worst moment of the children’s lives. Naming a guardian in advance does not strip the court of its authority, but Florida law gives strong weight to a parent’s written nomination, making the family’s wishes the starting point rather than an afterthought.
The Will Is the Right Tool
In Florida, parents nominate a guardian for their minor children through their last will and testament. To be valid, a Florida will must be signed by the maker and witnessed by two witnesses who sign in the maker’s presence and each other’s presence under Section 732.502. A guardian nomination scribbled on a notecard or stored only in someone’s memory carries little weight. The will is also where you can name a different person to handle the children’s finances, which leads to the distinction many parents miss.
Guardian of the Person vs. the Property
Florida separates two roles. The guardian of the person handles daily care: where the children live, their schooling, their medical decisions. The guardian of the property, or better yet a trustee, manages any money and assets they inherit. These do not have to be the same individual. Jen’s warm, devoted sister might be perfect for raising the kids but terrible with a six-figure life-insurance payout. Naming a careful, financially capable person or a trustee for the money protects the children from both family conflict and poor money management.
Keep the Money Out of a Raw Inheritance
If minor children inherit assets directly in Florida, the court typically requires a guardianship of the property, with annual accountings and court oversight, and the funds are usually released to the child at age 18, often far too young for a large sum. A better path is a revocable living trust under Chapter 736 or a testamentary trust in the will, holding the money and directing the trustee to spend it on the children’s health, education, and support, then distributing the balance at ages the parents choose, such as 25 and 30 in staggered shares.
Choose Backups and Talk to People
Name at least one alternate guardian in case your first choice cannot serve, moves, or declines. And actually ask the people first. A guardian who learns of the role only after a tragedy may say no. Revisit your choices after major life changes, since the cousin who was ideal when single may not be once their own household changes.
A Note Before You Act
Guardian nominations, trust provisions, and beneficiary designations must work together, and Florida’s will-execution formalities are strict. Before finalizing your plan, consult a Florida estate planning attorney to make sure your wishes for your children are legally enforceable.
For more on our Florida practice, see our overview of estate planning in Palm Beach. Morgan Legal Group's affiliated New York office also handles special needs planning in New York.