Every family with minor children needs to be prepared for the possibility of guardianship in the unfortunate situation where both parents are no longer around to care for them. Though no parent wants to actually think about it, you would want to know that if something happens to you, your child will be in good hands. Planning for guardianship will give you the peace of mind you need.
What is a guardianship?
Guardianship is the legal status conferred by the court that gives an individual the legal right to care for a minor child and the authority to make decisions on that child’s behalf. The laws governing guardianships are very different from state to state. In most states, the person seeking legal guardianship of a minor child is required to first file a petition with the court. Courts basically have considerable discretion in deciding who would ultimately be a proper guardian. However, the preferences of the parents typically play a key role in the determination. In order to make your preferences known, you must include the appropriate guardianship provisions in your estate plan.
When legal guardianship is required following the death of both parents
When one parent dies, the remaining parent will continue to be the child’s legal guardian automatically. The only time that does not happen is when the surviving parent has lost or given away his or her parental rights. A guardianship is typically not required until either the remaining parent dies, or both parents die simultaneously. If that happens, a guardian must be appointed by the court to assume legal guardianship over the minor child.
Including guardianship provisions in your will
As you are likely aware, your last will and testament is used to provide instructions regarding the distribution of your property upon your death. Another important purpose of a will is to appoint a trusted individual as guardian of your minor children, in the event they are still minors at the time of your death and there is no surviving parent. Without a will or some other guardianship provisions, the court will determine who receives your estate, based on the laws of intestate succession, regardless of what you may have wanted.
The same is true for your minor children. If you do not have a will that appoints a guardian for your children, the court will decide on its own who that guardian will be, without any input from you. Most parents do not want to leave that decision in the hands of an impartial judge.
Be sure to consider the present and future
Deciding who you should name as legal guardian of your children can be very difficult for most parents. You may have too many good options to choose from, or you may not have many options that you feel comfortable choosing from. Regardless of your situation, be sure to consider the possibility that a person’s circumstances may change in the future. In other words, someone who may seem like the perfect choice right now, may not be the best choice in the future. It may be hard to predict, but you should take into consideration the age, health, and location of your guardian options. It is always a good idea to name both primary and secondary guardians, in case there is something preventing your primary guardian from serving in that role. In the end, the court must determine if the person you have chosen is an appropriate guardian at the time the appointment needs to be made. Having an alternative could prove invaluable for the court.
Be sure your chosen guardian has what they need
In addition to selecting an appropriate guardian, you also need to include provisions for sufficient financial resources, as well. This can most easily be accomplished through a testamentary trust, which becomes effective at your death, pursuant to the instructions you provide in your will. For instance, if your will provides that your children will receive equal shares of your estate, then the guardian would, in turn, have access to those assets for the benefit of the children.
What if I don’t have guardianship provisions?
If you do not include guardianship provisions in your will, the determination of who should serve as legal guardian of your children will be made by the probate court. While it is clearly the judge’s responsibility to guarantee the best interests of your child will be met, the decision may not be in line with your own wishes. Consequently, creating an estate plan that includes guardianship provisions is the best strategy 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.