Caring for Your Children: Testamentary Guardians for Minors in Pennsylvania

In a previous article, we discussed the Pennsylvania Uniform Transfers to Minors Act (PUTMA), which offers a straightforward way to gift or transfer property to minors without the complexities of establishing a formal trust or extensive court oversight. Additionally, there are mechanisms to address both custody and financial issues related to minors upon a parent’s passing, one of which is “testamentary guardianship.”


Under the Pennsylvania Estate Law, formally known as the Decedents, Estates, and Fiduciaries Code, § 2519 allows individuals to designate a testamentary guardian for a minor in their will. Only a sole surviving parent has the authority to nominate a “guardian of the person,” responsible for custody decisions such as where the child will live, their religious upbringing, medical care, and day-to-day parenting responsibilities.


While only a parent can appoint a guardian of the person, anyone can nominate a “guardian of the estate,” as outlined in Section 2519(b). This enables any individual to designate a guardian for any real or personal property that will be passed to a minor upon the testator’s death. This includes assets transferred through a will, life insurance proceeds, gifts made during the testator’s lifetime, claims arising from the testator’s death, and certain pension or death benefits.

These legal provisions offer significant benefits. Estate planning attorneys in Pennsylvania frequently assist parents who wish to restrict the surviving parent from accessing the child’s inheritance. Naming a guardian of the estate ensures that any assets flowing from the deceased parent’s estate can be managed by the guardian, thereby safeguarding the child’s inheritance. While the appointment of a testamentary guardian for the person is strictly limited to a sole surviving parent, some case law indicates that a deceased parent’s wishes regarding guardianship may still be considered, as the courts prioritize the child’s welfare.


The legal landscape regarding the immediate authority of a testamentary guardian following the testator’s death remains somewhat ambiguous. It’s unclear whether the nominated individual can start exercising guardianship powers immediately or if they must first obtain court confirmation. Although there is limited case law on this topic, a recent case, In re Slaughter, 738 A.2d 1013 (Pa.Super. 1999), suggested a presumption of legitimacy for the nominated guardian until proven otherwise. Practically, a testamentary guardian may benefit from court confirmation for ease in managing the child’s affairs, such as interfacing with schools and healthcare providers.


It’s important to differentiate between guardians and trustees: a guardian does not hold legal title to the minor’s property but serves as a custodian or manager under the court’s supervision. The minor remains the legal owner. Guardians must provide an inventory and appraisal of any property within three months of possession and could be required to submit an accounting to the court at any time, as stipulated in 20 Pa.C.S.A. § 5142 and § 5161.


The responsibilities of guardians are complex and extensive. Effective planning is crucial to ensure that your children are well cared for after your passing, and expert legal advice is invaluable for fulfilling the role of a guardian. Whether you’re establishing a new estate plan or revisiting an existing one, consulting with legal counsel is highly recommended.