“Who would take our children? I am not sure anyone would be willing to take them,” remarked Helen to her attorney Clara. “It’s not that they aren’t good children. They are all fine, but there are 11 of them! If something happens to John and me, who will take them?”
Personal Guardian for Minor Children
One very important decision for you to make when creating an estate plan is to decide who will be the Guardian of your minor children. In fact, the choice of Guardian for minor children is often one of the most agonizing decisions to be made. Clients sometimes put off estate planning simply because they don’t know who to name as Guardian for their children.
And no wonder. Your Guardian will raise your children, teach them values, select the schools they attend and perform all the functions of a parent. If you do not have a Guardian selected in a Will, a court may select a person. That person may not share your cultural background, your religion, your general world view or any other aspects of the character that you think important for the person who raises your children. By selecting a Guardian and an alternate in your Will, you have a much better prospect of finding someone that you think is the right person to raise your children. So regardless of how difficult the decision may be, it is still preferable to leaving that decision to a stranger in a black robe.
Normally, if there are two parents, the survivor will be the default choice as Guardian of the children. But if both parents were to die unexpectedly, then it would be necessary to select a Guardian.
Even if you select a Guardian, there is still an outside chance that there could be an objection or contest by other family members. Usually, the probate judge will approve your selection unless there is strong evidence that indicates the person is not qualified. For example, evidence of alcoholism, criminal background or a history of child abuse could lead the judge to select another person. However, in nearly all cases the person that you select is chosen because he or she is the best possible individual to raise your children.
It is especially important for single parents to name a Guardian. There are several reasons why a person may be a single parent in our society. A single parent may never have been married, there could have been a divorce or the spouse could have passed away. In any of these situations, it is important for that single parent to have carefully selected a Guardian of his or her choice.
If you have divorced and remarried, it may be your desire to have your new spouse as the Guardian for children from your first marriage.
Normally, children are placed with their biological parent. However, if you can show good reasons why it is in “the best interest of the child” for your new spouse to be Guardian, the court may permit him or her to raise your children. It is important, in that situation, for you to specify your reasons for naming your current spouse, to explain your reasons why the biological parent is not a good choice and how your current spouse would be the best person to raise your children.
Inheritance for Your Children
Unless you have a high level of trust in the person selected to be Guardian and you don’t have a lot of assets, it is generally unwise to transfer property outright to the Guardian of your children. If you choose to entrust a Guardian with your property, you need to recognize that the Guardian will have complete control over that property, and may choose to use the property for purposes other than what you would have wanted. It is almost always preferable to set up a trust for your children. That way, you can specify how you want your assets to be used for the benefit of your children.
Trust for Children
It is quite common to create a trust for children. A person or corporate Trustee is selected to manage the property for the benefit of your children. The Trustee can then use the trust for the health care, educational expenses. maintenance and support of your children, and can also transfer money from the trust to the Guardian to help with the costs and expenses of raising your children. The combination of a Trustee managing the property and the Guardian raising the children often provides checks and balances that achieve the best result for the child. In other situations, the duties of Trustee and Guardian are carried out by the same person. Each situation is different and should be evaluated on its own merits.
Who should be named to act as Guardian for minor children is probably one of the most difficult and heart-wrenching decisions you will have to make during the estate planning process. Who will carry on your values? What if the children are in high school, and your named Guardian lives across the country, is it fair to disrupt the life of a child to that extent? Should you name a family member, or is it more appropriate to name your close friend? Is your parent a good option to act as Guardian? Issues such as these, and many others, will have to be navigated when creating an estate plan involving minor children.