The Importance of Naming a Guardian
It is difficult for the court to appoint guardians for children whose parents have died without writing a will and naming the guardians. It is really one of the saddest areas of Estate Planning law that I deal with. 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. The kids often end up never seeing most of their family again.
Many couples don’t do their estate planning because they can’t select or agree on guardians for their kids. It is hard to pick guardians. Who wants the kids? Who will take the best care of them? Where will your kids be brought up? Will the children be cherished?
When you do your estate planning, who do you pick as guardians for the children? If it is hard for you, think of the judge. Protect your children by naming guardians for them in your will. Do it now! 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. Let me tell you about one estate planning case where the parents were killed in an auto accident and the grandparents hoped 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. The accident acted as a wake up call to the grandparents to get their own estate planning done. They called me and I helped with the trust, wills and other documents. Their estate plan provided that a substantial amount of their assets be left to the orphaned grandchildren. The grandchildren were just removed from the list of beneficiaries in the trust and will, after twenty years, at the grandparents’ request. It has been twenty years and the grandchildren haven’t seen and don’t even know their grandparents.
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 selection that you make in your will is almost always honored by the court. 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. List two or three different selections for guardian in your will. Suppose the first in line doesn’t work for some reason, the next in line will fill the place until one can serve. Every selection the court considers should have restrictions or things for the court to look at. Consider that there may be quite a time lag before the guardians could start to serve and anticipate the changes.
For example, you could restrict the grandparents’ service on the condition that they have the health to take care of the grandchildren. When you want to place the children with an aunt or uncle, put the restriction that they are still happily married to their same spouse. 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. Most lawyers never take the time to put these types of restrictions in a will. These restrictions should be included in your will–just ask for them.
Get in depth information on estate planning including information on naming guardians in Guaranteed Millionaire, my new book. Naming guardians won’t give you a million dollars, but sometimes things are worth more than money.
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