What happens to my children if I die without a will in Florida?

If both parents die without a will, a Florida court will appoint a guardian for your minor children. The court considers the child's best interests, but the outcome may not match your preferences. Family members may disagree and file competing petitions, leading to costly and emotionally draining litigation. A will that names a guardian prevents this entirely.

Estate Planning for New Parents in Florida: Protect Your Children's Future

Q: Do new parents need a will or trust?

Yes. Every new parent needs at minimum a will that names a guardian for their minor children. A revocable living trust is also recommended because it avoids probate, provides immediate access to funds for your children's care, and allows you to control when and how your children receive their inheritance. Without these documents, a court will decide who raises your children and how your assets are distributed.

Q: How do I choose a guardian for my child?

Choose someone who shares your values and parenting philosophy, is financially stable and willing to take on the responsibility, lives in a location where your children can thrive, has a good relationship with your children, and is young and healthy enough to care for children long-term. You should also name a backup (successor) guardian. Discuss the role with your chosen guardian before naming them.

Q: How much does estate planning cost for new parents?

A basic estate plan for new parents (will, guardian designation, power of attorney, healthcare surrogate, and living will) typically costs $1,000 to $2,500. A more comprehensive plan with a revocable living trust, trust for minor children, and ancillary documents typically costs $2,500 to $4,500. The cost is a fraction of what guardianship proceedings or probate would cost your family.

Why New Parents Need an Estate Plan

The moment you become a parent, estate planning shifts from optional to urgent. Without a plan, if something happens to you and your partner, a Florida court will decide who raises your children and how your money is managed on their behalf. The court's decision may not align with your wishes, and the process can take months, during which your children face uncertainty.

A proper estate plan ensures that your children are cared for by someone you trust, that their financial needs are met, and that the transition is as smooth as possible. At Barnes Walker, our estate planning attorneys help new parents create comprehensive plans that protect their families.

Step 1: Name a Guardian for Your Children

This is the single most important estate planning decision for new parents. A guardian is the person who will raise your minor children if both parents die or become incapacitated. Your will is the legal document that names the guardian.

How to Choose a Guardian

Shared values: Choose someone whose parenting philosophy aligns with yours
Financial stability: The guardian should be financially responsible (though your estate can provide financial support)
Willingness: Always discuss the role with your chosen guardian before naming them
Location: Consider whether your children would need to relocate and how that would affect their lives
Age and health: The guardian should be young and healthy enough to care for children long-term
Relationship with your children: Ideally, someone your children already know and trust

Always name a successor guardian in case your first choice is unable or unwilling to serve when the time comes.

Guardian of the Person vs. Guardian of the Property

You can name different people for these roles. The guardian of the person raises the child. The guardian of the property manages the child's finances. Some parents prefer to separate these roles, especially if the best caregiver is not the best financial manager. A trust eliminates the need for a guardian of the property entirely.

Step 2: Create a Trust for Minor Children

If you leave assets directly to a minor child, the court must appoint a guardian of the property to manage those assets, a restrictive and expensive process. A revocable living trust with provisions for minor children avoids this entirely.

Your trust can specify:

Who manages the money: A trustee you choose (which can be the guardian or someone else)
What the money can be used for: Education, healthcare, housing, extracurricular activities
When the child receives the balance: At age 25, 30, or in staged distributions
Protection from creditors: Spendthrift provisions protect the funds from the child's future creditors or spouse

Step 3: Get Life Insurance

Life insurance provides the financial foundation for your children's care. If you die, the insurance proceeds fund the trust, which provides for your children's living expenses, education, and future needs. Key considerations:

Coverage amount: Consider the cost of raising your children to adulthood, plus college expenses. Many advisors recommend 10 to 15 times your annual income.
Beneficiary designation: Name your trust (not your minor children) as the beneficiary of the policy
Term vs. permanent: Term life insurance is the most cost-effective option for most new parents

Step 4: Complete Your Incapacity Documents

If you become incapacitated (but do not die), these documents ensure your family can function:

Durable power of attorney: Authorizes someone to manage your finances
Healthcare surrogate designation: Names someone to make medical decisions
Living will: Documents your end-of-life medical preferences
HIPAA authorization: Allows your designated people to access your medical records

Read more about incapacity planning and why it matters for every parent.

Step 5: Review Beneficiary Designations

After having a child, review the beneficiary designations on:

Life insurance policies
Retirement accounts (401(k), IRA)
Bank accounts (POD designations)
Investment accounts (TOD designations)

Never name a minor child as a direct beneficiary. Name your trust instead. If a minor child is a direct beneficiary, the court must appoint a guardian of the property to manage the funds until the child turns 18, at which point they receive the full balance outright, with no restrictions.

Common Mistakes New Parents Make

Waiting too long: Estate planning should happen within months of your child's birth, not years
Only getting a will: A will alone requires probate. A trust avoids it and provides more control
Naming a minor as beneficiary: Always name the trust, not the child
Not discussing guardianship with the chosen guardian: Surprising someone with this responsibility is unfair
Not updating after a second child: Your estate plan should be reviewed after every birth or adoption

Frequently Asked Questions

Do new parents need a will or trust?

Yes. At minimum, a will names a guardian for your children. A revocable trust provides additional control over when and how your children receive their inheritance and avoids probate.

How do I choose a guardian for my child?

Choose someone who shares your values, is financially stable, is willing to serve, and has a good relationship with your children. Always name a backup guardian.

What happens to my children if I die without a will?

A Florida court will appoint a guardian. Family members may disagree, leading to costly litigation. A will naming a guardian prevents this.

How much does estate planning cost for new parents?

A basic plan (will, POA, healthcare documents) costs $1,000 to $2,500. A comprehensive plan with a trust costs $2,500 to $4,500.

Just had a baby? Contact Barnes Walker to protect your family's future.

Disclaimer: This information is for general educational purposes and should not be construed as legal advice. Estate planning should be tailored to your family's circumstances. Contact one of our Florida attorneys for personalized guidance.

Estate Planning for New Parents in Florida