Naming a Guardian in a Will
It is always a tragedy when young parents die and it is especially sad, when they have failed to write a will and name guardians. This is 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. Families seldom, if ever, see the kids.
Many couples don’t do their estate planning because they can’t select or agree on guardians for their kids. Picking guardians is difficult. Who wishes for custody of your kids? Who will best raise your children? Where will your children be raised? Will your children be lovingly cared for?
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. There wasn’t a will. No estate planning had been done. The judge appointed a shoestring relative as guardian.
The Court was petitioned by and appointed a distant relative to be guardian. Shortly after the accident, the grandparents had me make out their own living trust. Their estate plan provided that a substantial amount of their assets be left to the orphaned grandchildren. It has been twenty years, and the grandparents just requested I take the grandchildren off the list of beneficiaries in their trust and will. The grandparents hadn’t seen the grandchildren for twenty years.
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 court will almost always honor 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. As you write your will you can "educate" the probate court because you understand what it is you want. You should make two or three different guardian selections in your will. 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. Consider that there may be quite a time lag before the guardians could start to serve and anticipate the changes.
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. Protect the children by putting the restriction on the aunt or uncle that they are still happily married to their spouse. If it is important to you that your children be raised in your family home, or in a specific religion, add that restriction. Any help you give the judge in your will would be appreciated by the court. Few lawyers put restrictions like these in a will; it takes too much time. Ask your attorney to include these restrictions in your will.
My new book, Guaranteed Millionaire, gives you a lot of detail on naming guardians in your will. Naming guardians won’t give you a million dollars, but sometimes things are worth more than money.
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