The one estate-planning document that every expecting or new parent MUST HAVE is a Last Will & Testament and it may not be for the reason you are thinking...
Wills are most commonly known as devices for distributing your property to family and friends when you die but they also serve another vital purpose and that is appointing a legal guardian for your minor children. In fact, in just about every state the ONLY WAY to appoint a guardian for your minor children is through a Last Will and Testament. A trust or any other estate-planning document simply does not work for this singular purpose.
Why is appointing a guardian for your minor children important?
Typically, if one parent predeceases the other parent then the surviving parent will take over sole custody of the minor children. This also applies in the event that a married parent becomes divorced, so long as both parents were reasonably involved in raising the children and the surviving parent is fit for sole custody.
But what happens in the event of both parents’ death or if a single parent dies?
If neither parent is around, the law requires another adult to be appointed to legally care for your children.
If you do not have a Will in place stating your preference for guardians, then the state will appoint guardians for your children on your behalf.
Not only will this involve formal court proceedings, in some cases it can lead to bitter disputes among family members and friends as competing factions litigate for custody of your children. This is why a Will is essential to every parent with minor children. By designating guardians in your Will you put the Court and your family members on notice as to your preferences and desires.
This is a good spot to note that simply designating an individual as a guardian in your Will does not mean that he or she will automatically be appointed as your child’s guardian. Ultimately that decision is left to the Court to be decided based on the best interest of the child. However, with that said, the Court is almost always going to following the parents’ stated wishes in their Wills unless there is a compelling reason not to. Typically these reasons are the most egregious of situations such as a history of drug or alcohol abuse, physical abuse or mental illness. It is also important to note that the Court cannot force an individual to become the legal guardian of your children even if you named the person as guardian in your Will.
That is why it is critically important that you discuss the potential appointment with the person you plan on designating to make sure that he or she is up for the task.
Factors to consider when designating a guardian for your children:
Not surprisingly, the question of appointing guardians is the single biggest item that my clients struggle with when designing their estate plans.
Here are a couple of items to consider when discussing this sometimes contentious topic with your spouse, partner or child’s other parent:
To learn more about appointing guardians for your minor children and many other critical estate planning tips to protect your children I invite you to request my 100% free guide:
THE PARENT’S ULTIMATE GUIDE TO ESTATE PLANNING or to schedule your free initial consultation today.
John Thompson is a shareholder with Kennedy Berkley Yarnevich & Williamson, Chartered assisting entrepreneurs, families and farmers in the areas of estate and business planning.