A question that every parent contemplates in the wee hours of the night is “who will raise my children if I am gone?” You can stop worrying if you provide for the guardianship of your children now.
If you die leaving minor children and the other parent survives you, the other parent will most likely raise and support them. If the other parent is not living, your minor children will require a guardian. A guardian is an individual who is appointed by the court to take custody of minor children. The guardian is required by law to provide for the minor’s health, education, maintenance and support.
You may appoint a guardian for your minor children in your will. If you do not have a will, or do not appoint a guardian, then the court will make the selection of a guardian for you. Since the court may appoint someone you do not want raising your children, it is very important to appoint a guardian in you will. Also, it is important that each parent have a will nominating the same guardian. If both parents pass away at the same time, there should not be conflicting nominations for guardian in their respective wills. It can happen especially if the parents are not married or together in another sense. If this happens, it can lead to a court battle over the conflicting nominations and result in the court nominating someone other than who you want raising you children.
However, it is easy to assume responsibility for this important decision as a part of your estate planning. As an experienced estate planning attorney, I can help you include this in your estate plan so you will have peace of mind that your children will be raised by who you want raising them in the event you and the other parent die.
When determining who you want to raise your children, you may wish to look first to your family, such as brothers, sisters, or cousins. You may also wish to consider friends with children in the same age range as your children. You should always consult with the proposed guardian to ensure that the person is agreeable to assuming this significant and important responsibility.
If you are designating a husband and wife to serve as co-guardians, you should specify that both of them are to serve only if they are still married to each other at the time of the appointment.
If both parents die, your minor children may be left with substantial property interests that need management and protection. You may wish to consider whether you want the same person to care for your children and manage their property interests.
In loving families, it is often the same person that is appointed as guardian and the trustee of the trust for the minor’s benefit. As your estate planning attorney, I can help you determine who should be appointed as guardian and/or trustee.
It is usually a good idea that upon the death of you and your spouse, a trust be established for your minor children. The trustee should be encouraged to make generous distributions to assist the guardian, including the provision of funds to pay for any necessary expansion of the guardian’s home to accommodate your children.
And it is always a good idea to tell the proposed guardians that they are named in your Will, Living Trust or other estate planning documents even after you have discussed this issue with them.
For more information on appointing a guardian, go to my website at RudolphLegal.com.