If you have minor children, there is no doubt that you are concerned about their welfare, not just now, but in the future as well. Something parents often don’t want to think about, is who will take care of their children if something happens to both parents. But, even though we don’t want to think about it, we should still be prepared for the possibility of our children not being with us at some point. Planning ahead can give you the peace of mind you need. That means planning for guardianship of your minor children if anything happens to you.
What does guardianship mean?
Guardianship is basically a legal status authorized by the court, which allows someone to take over the care of your minor children and make decisions for the benefit of your children. Every state has its own laws that govern guardianship. Typically, the person who seeks legal guardianship over a minor is required to file a petition with the court requesting that status.
Including guardianship provisions in your will
Along with providing your instructions for distributing your property at your death, a will can also provide a means for identifying the person you nominate to be guardian for your children. Those provisions will only take effect when there is no surviving parent. Without a will, just as with your property, the court will determine who to appoint as guardian for your children without any input from you. If you do not want to leave that decision in the hands of an impartial judge, then you need to make those decisions now and document them in your estate plan.
The court makes the final decision
Although it is true that the court maintains discretion in deciding who would make a proper guardian, any preference the parents have will be seriously considered in making the decision. So, if you want to make your preferences for guardian known, you need to include them in your estate plan.
Guardianship becomes necessary following the death of both parents
As you probably know, when one parent dies, the surviving parent automatically retains legal guardianship of any minor children. That is, as long as the surviving parental rights have not been terminated. However, when both parents die at the same time or when the surviving parent dies, then a guardian needs to be appointed to take over guardianship of the minor children.
Considerations to make when determining who to appoint
Deciding who you should name as legal guardian of your minor children can be a very difficult challenge for most people. Something important to think about is the possibility that the circumstances for the person you choose could change in the future. Put another way, someone who may appear to you to be the perfect choice for guardian today, may not be so in the future. It is important to take into consideration the age, health and location of the people you are considering for guardian.
For these reasons, it is a good idea to select both a primary and secondary guardian, in case there is something preventing your primary guardian from serving in that role when the time comes. In the long run, the court will need to determine if the person you have chosen would make a proper guardian at the time the appointment is made. Having an alternative to choose from could be very helpful to the court.
Be sure the guardian has everything they need to care for your child
In order to provide proper care for your children, a guardian needs to have sufficient financial resources available to provide that care. You can provide these necessary resources through a testamentary trust. A testamentary trust will actually become effective upon your death, as set out in the instructions you include in your will. For example, if your will provides that your children should receive equal shares of estate, the guardian would be given access to those assets, to be used for the benefit of the children.
What happens if you don’t include provisions for a guardian?
If you fail to include guardianship provisions in your will or establish a testamentary trust, the determination of who should serve as legal guardian will be made by the court. While it is the judge’s responsibility to ensure the best interests of the child are met, that decision may not correspond with your own wishes. Therefore, establishing an estate plan that includes guardianship provisions is the best course of action for you and your family.
Join us for a FREE seminar! If you have questions regarding guardianship, or any other estate planning needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.
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