Believe it or not, many people, both young and old, have not made their Wills. Most have not even thought of having one prepared. Preparing a Will can be a reminder of our mortality, which causes many to avoid the situation entirely. Estate planning and Will preparation should be a priority, especially for young families with minor children. One important part of the estate planning process is to name a guardian in your Will if there are any children under the age of majority (age 18 in most states).
What is a Guardian?
A guardian is someone, either a family member or close friend, who the parents choose to care for their minor children in the unlikely event they cannot. The easy part is that you can name a guardian of your choice in your Will. The difficult part is choosing someone who can be trusted to serve as guardian and having both parents agree on that choice. Many parents find it difficult to choose or agree on who should serve as their children’s guardian, and as a result, never make a decision. By law, if a guardian is not stated in your Will, anyone who is interested in taking up this role is eligible for consideration. Therefore, someone you may not want to care for your children could end up with the job. In making a determination of who a suitable guardian would be, courts generally will consider the preferences and opinions of a child age 14 or older (in most jurisdictions).
Things to Consider when Choosing a Guardian
When preparing to name a guardian for your children, many factors should be thought out clearly and objectively. Remember, if anything should happen to you, your children will live with a guardian until they are adults (18 in most states). A major concern should be to choose someone who will have a loving and beneficial relationship with your children.
Ask yourself the following basic questions:
- Do my children currently have a good relationship with this person?
- Does the person share in my moral values?
- Is the person emotionally and financially able to care for my child?
- Where does this person reside?
- Does this person have children of his own?
- Would it be better to have one guardian for all your children, or choose separate guardians for each child?
One important step is to pick an alternate guardian in the event that your first choice is unable to serve as guardian, or declines the responsibility. You also should discuss your plans with the person or persons you are considering. Make sure that they are willing to take the responsibility and respect your wishes for the upbringing of your children.
Another important point to consider is to name someone other than the person you have chosen to be guardian to serve as trustee of your children’s inheritance. It is possible that the person you name as guardian would be more than capable of caring for your children, but would be terrible at managing their finances or vice versa. You should prevent the possible overspending of your children’s inheritance on the part of the guardian.
While we hope that every marriage starts and stays happy, this is not always the case. In a situation where separated or divorced parents cannot agree on a guardian, or present different wishes on the issue, a judge will be forced to make a choice based on the children’s best interests, should both parents die. If you have strong feelings about the other parent caring for your children in the event of your death, the best option you have is to draft a letter stating your wishes for a guardian. You should list the reasons the other parent should not be given custody. Attach this letter to your Will. Again, based on the best interests of the children, the judge will appoint a suitable guardian. Unless there are serious problems in the other parent’s life, such as documented child or drug abuse, there is little you can do to prevent them from caring for your children.
Another point to consider is not choosing a married couple to serve as guardians. In the event that the couple divorces after your death, a court battle could result in bringing additional tension into your children’s lives. One solution is to name one person as primary guardian and the other person as secondary guardian.
Choosing a guardian is not an easy task, yet it must be done. If you have minor children, but do not have a Will or have not appointed a guardian, now is the time to prioritize this, and get it accomplished. Above all, when choosing a guardian, you should always put your children’s best interests first. For more information on the best options for your family, talk to your estate planning attorney. You may also contact Henssler Financial at 770-429-9166 or at [email protected]