Naming a Guardian in a Will
One of the saddest areas of Estate Planning law that I deal with is the situation where the courts are appointing guardians for children when the parents are dead and they have failed to write a will and name guardians. I have seen families torn apart when the judge names his final determination for guardian. Of course the judge does the best he can, but without a will naming the guardians, he can’t know what the parents really want. The family will, often times, never see the kids again.
Many times couples are unable to agree on guardians for their kids when they come in to do their estate planning. As a result they don’t ever complete the task. Picking guardians is difficult. Who wants custody of your children? Who can best look after them? Where will the guardian bring up the kids? Will the children be cherished?
When doing your estate planning, you need to carefully pick the guardians for your kids. If it is hard for you, think of 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.
Grandparents need to make sure their kids do their estate planning and name guardians for the grandchildren in a will. After the parents were killed in an auto accident, I handled one estate planning case where the grandparents wanted to raise their grandchildren. There wasn’t a will. No estate planning had been done.The judge appointed a shoestring relative as guardian.A shoestring relative was appointed by the Court as guardian. Shortly after the accident, the grandparents had me make out their own living trust. The estate plan left their orphaned grandchildren a substantial portion of their estate. I just helped the grandparents update their trusts and wills, after twenty years, and the grandchildren were removed from the list of beneficiaries. It has been twenty years since the grandparents have seen the grandchildren.
The probate court makes the final determination and gives the guardian legal custody and authority to raise your children, after considering who you name in your will.
The judge will almost always appoint the selection you have made in your will. Ask yourself, "Who and what do I really want for my children’s guardian?". This is an important exercise before you start your estate planning or make your will. 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 the first selection doesn’t work for some reason, the second selection will be next in line and so on. The court should be tutored with restrictions or things to consider about each selection. The guardians could start to serve many years from now so you have to take that time lag into consideration.
The grandparents’ service to take care of the grandchildren could be restricted on the condition that they have the health to do it. The condition, that the aunt or uncle is still happily married to their same spouse, protects the children. The guardians could be restricted by the judge to raise the children in your family home, or have them raised in a specific religion, if you ask for it. Of course the court appreciates any help you give. Most lawyers never take the time to put these types of restrictions in a will. Ask your attorney to include these restrictions in your will.
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