Delaware Estate Planning for Parents of Minor Children

If both parents of a minor child die without naming a guardian in a will, the Delaware Family Court decides who raises your children. The court appoints someone it considers suitable — which may or may not be the person you would have chosen.

This is the single strongest reason for parents of minor children to have a will, even if they own almost nothing. A will is the only legal document that allows you to nominate a guardian for your children. Not a trust, not a power of attorney, not a letter of intent. Only a will.

How Guardian Nomination Works in Delaware

You nominate a guardian by including a clause in your Last Will and Testament. The nomination is a strong legal recommendation, and Delaware courts give it substantial weight. But it's not automatically binding — the Family Court must confirm the appointment, and the nominee must be willing and able to serve.

Practical steps:

Name a first choice and an alternate. If your primary nominee is unable or unwilling to serve, the court moves to your alternate without the delay of a fresh search.

Name the same guardian in both parents' wills. If parents name different guardians and both die simultaneously, the court must choose between them — exactly the kind of dispute you're trying to prevent.

Consider naming separate guardians of the person and the estate. The guardian of the person raises your children. The guardian of the estate manages their financial inheritance. These don't have to be the same individual. A loving aunt may be the right person to raise your children but a poor choice to manage a $200,000 life insurance payout.

What Happens Without a Guardian Nomination

If no guardian is named, any interested party — a grandparent, aunt, uncle, or family friend — can petition the Delaware Family Court for guardianship. If multiple people petition, the court holds a hearing to determine the best interest of the child.

These proceedings are stressful, expensive, and public. Family relationships fracture. Children may be placed in temporary foster care while the court decides. The entire process can take months, during which the children are in limbo.

Even a simple will with nothing more than a guardian nomination prevents this.

Financial Protection for Minor Children

Minor children cannot inherit property outright in Delaware. If a parent dies and leaves assets to a child under 18, those assets must be managed by a custodian or trustee until the child reaches legal age. Without instructions, the court appoints a guardian of the estate — and requires a surety bond, annual accountings, and court approval for significant expenditures.

Options for structuring a child's inheritance:

Testamentary trust. Created within your will, a testamentary trust holds assets for your children under terms you specify — including the age at which they receive the funds (you can set this older than 18). A trustee you name manages the assets and distributes funds for the child's health, education, and welfare.

Custodial account (UTMA). Under Delaware's Uniform Transfers to Minors Act, you can designate a custodian who manages assets until the child turns 21. This is simpler than a trust but gives you less control over distribution terms.

Life insurance trust. If you have significant life insurance, a separate trust can receive the death benefit and manage it for your children's long-term needs. This keeps the payout out of probate and gives the trustee flexibility in how funds are used.

Age-Specific Considerations

Infants and toddlers. Focus on choosing a guardian who can commit to raising your child for 16+ years, not just someone who is currently available. Consider logistics — where the guardian lives, whether your child would need to change schools, and whether the guardian's lifestyle can accommodate a young child.

School-age children. If possible, choose a guardian in the same school district to minimize disruption. Include a letter of intent (separate from the will) describing your parenting values, religious preferences, education priorities, and any special needs.

Teenagers. Older children's preferences carry weight with the court, but they don't override a will's nomination. If your teenager has a strong preference, address it in your guardian selection rather than leaving it to the court.

The Documents Parents Need

At minimum, parents of minor children in Delaware need:

1. A will with guardian nomination, alternate guardian, and instructions for managing children's inheritance
2. A durable power of attorney so someone can handle your finances if you're incapacitated (critical if you're a single parent)
3. An advance health-care directive naming a health-care agent and treatment preferences
4. Life insurance with proper beneficiary designations (naming the trust, not the minor child directly)

The Delaware Basic Estate Planning Kit walks parents through each of these documents with Delaware-specific guidance — including the guardian nomination language, the witness requirements for each document, and the county filing procedures that apply.

See more Delaware guides →