For families with minor children, there is a crucial issue that must be addressed in your estate plan. That is planning for their future care in the event they are still minors if both parents are deceased. As parents, the care and protection of your children are of paramount concern and that concern grows if you are not able to provide that care and protection. Despite the fact that most people do not want to consider the possibility that both parents may die before their children are adults, it can happen and you need to be prepared. For this reason, including guardianship provisions in your estate plan is necessary and our Los Angeles estate planning attorneys can help you draft them properly.
What does guardianship mean?
Guardianship is essentially a legal relationship established by the court in order to allow someone other than the parents to be responsible for the care and protection of a minor child. The court-appointed guardian will have the legal authority to make decisions for the benefit of the child. Each state has a set of laws that govern guardianships. These proceedings are initiated by the filing of a petition with the court requesting appointment as guardian. If you have questions about what appointing a guardian means, contact our Los Angeles estate planning attorneys.
You should include guardianship provisions in your Will
The primary purpose of your last will and testament is to pass along your instructions for the distribution of your property upon your death. Your will can also be used to identify the individual you want to be appointed as guardian for your minor children. By including guardianship provisions in your will, you can rest assured that your children will be taken care of if something happens to you. The good news is that guardianship provisions are only effective in cases where there is no surviving parent with parental rights still intact.
What if you do not have guardianship provisions in place?
If you don’t include guardianship provisions in your will, then the probate court will ultimately decide who will serve as guardian for your children. The court will do so without any input from the parents. That means, if you would rather not leave that important decision in the hands of an impartial judge, or if there are certain members of your family whom you are set against being appointed to this role, then you need to include guardianship provisions in your will. Let our Los Angeles estate planning attorneys help.
The probate court still makes the final decision
Based on the law, the probate court ultimately makes the determination of who is the best person to serve as a child’s guardian. The court does maintain discretion in making that determination and typically gives the preferences of the parents very serious consideration. Once you give the decision a great deal of thought, speak to our Los Angeles estate planning attorneys so you can include your wishes in your estate plan.
Considerations to make when choosing a guardian
Making the important choice of who should be your child’s guardian if you can no longer care for them can be more of a challenge than you might expect. While your child is your primary concern, the person you choose to nominate must also be a concern because an appointment to guardian will change that person’s life as well. That means you must also consider how appropriate your choice might be in the future, not just today. To put it another way, your choice might seem perfect to you now, but depending on factors such as health, age, location and financial status, your choice may not still be a good one many years down the line.
For these reasons, our Los Angeles estate planning attorneys recommend choosing a primary and secondary guardian. This is a necessity in the event of some circumstance or even that might prevent your primary guardian from serving in that role once it is time to do so. 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.
Download a FREE estate planning worksheet today! If you have questions regarding estate planning, trust contests, or any other trust administration issues, please contact the Schomer Law Group either online or by calling us in Los Angeles at (310) 337-7696, and in Orange County at (562) 346-3209.
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