The Importance of Naming a Guardian
As an Estate Planning lawyer, one of the saddest situations that I deal with is where the courts are appointing guardians for children whose parents have died without writing a will and naming guardians. When the judge gives his final determination for guardian, he does the best he can, but without a will naming guardians, he can’t know what the parents really want. I have seen families torn apart when the judge makes his final determination. Families seldom, if ever, see the kids.
I also have couples come in to do their estate planning and they can’t ever complete the task, because they can’t select guardians for their kids. It is hard to pick guardians. Who wants custody of your children? Who has the ability to best watch over your kids? Where will your children be raised? Will the children be cherished?
When you do your estate planning, who do you pick as guardians for the children? It is easier for you, than it is for the judge. Name guardians for your children in your will now to make sure they are protected. If you are a grandparent, you need to make sure your kids do their estate planning or at least have wills that name guardians for the grandchildren.
Make sure your kids do their estate planning or at least have wills that name guardians for your grandchildren. I handled one estate planning case where the grandparents wanted to raise their grandchildren after the parents were killed in an auto accident. The parents had neglected to do their estate planning.The judge appointed a shoestring relative as guardian.
The guardian the judge appointed was a shoestring relative. Shortly after the accident, the grandparents had me make out their own living trust. They left a substantial amount of their estate to the orphaned grandchildren. Twenty years later they had me redo their wills and trusts and take the grandchildren off the list of beneficiaries. It has been twenty years since the grandparents have seen the grandchildren.
When you name guardians in your will, the probate court will make the final determination and give that guardian legal custody and legal authority to raise your children. The guardians you name in your will are virtually always appointed by the judge. An important exercise before you start your estate planning or make your will is to ask yourself, "Who and what do I want for my children’s guardian"? Once you understand what you want, when you write your will, you can "educate" the probate court. Your will should list two or three selections for guardian. If for some reason the first selection doesn’t work, next in line will serve and so forth. The court should be tutored with restrictions or things to consider about each selection. You don’t know how many years from now the guardians will start to serve, so you have to take that time lag into consideration.
If the grandparents are named as guardians, you could restrict their service on the condition that they have the health to take care of the grandchildren. If you name an uncle or aunt, restrict their service to the condition that they are still married to their same spouse and are happily married. You can require that the guardians raise the children in your religion or in your family home. If you give the court guidance, the judge would appreciate it. Restrictions like these are seldom included in a will; lawyers won’t take the time. To include these restrictions in your will, just ask your attorney.
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