If you’re the parent of young children, you’ve probably put a lot of thought into raising your kids, ranging from their schools to their activities to their religious upbringing. You may have also considered many “worst-case” scenarios.
Raise your hand if you have Googled “Is it normal if my kid [XYZ]?” or “Can toddlers eat [XYZ]?”. But have you considered what would happen to them in the most significant worst-case scenario? What will happen to your children if you – and your spouse if you’re married – should suddenly die? Will they be forced to live with relatives they don’t know or become entangled in a custody battle? Fortunately, you can avoid these what-ifs with some advanced estate planning.
With a will, there’s a way.
The biggest step you can take to ensure your intentions are met is to specifically name a guardian in your will. If you have a will in place but haven’t provided a guardian for your minor children, have your lawyer amend it as soon as possible. This can be done easily enough by adding a clause or, if warranted, through drafting a new will.
Be sure to list all the names and birthdates of your children. What if you are still growing your family? Don’t make the mistake of delaying the naming of the guardian. You can have your attorney draft language that includes a provision for any future children in the event you pass away before your will is amended.
What happens if you don’t name a guardian for minor children in your will? The choice will be left to the courts to decide based on the facts. In some cases, the court could choose a family member over a friend you would have chosen. This could lead to subsequent legal disputes with the kids caught in limbo. Similarly, if you are a part of a blended family, courts will typically always assign guardianship to the living biological parent even if they did not previously have custody. This could break up the children of your blended family.
Factors that can influence your choice.
There’s no definitive “right” or “wrong” choice for a guardian. Every situation is different. Several factors may sway your decision:
Location. It’s often preferable to name a guardian who lives close to your current location instead of someone residing thousands of miles away. The transition will be easier for the kids if they aren’t uprooted.
Age. A guardian’s age is often overlooked but can be a crucial factor. Your parents may have given you a great upbringing, but they may now be too old to raise young children. Plus, your parents may experience health issues that could adversely affect the family dynamic.
Environment. Do the guardian’s views on child raising align with your own? If not, your intentions may be defeated. Consider such aspects as education, religion, politics, and other lifestyle choices.
Living circumstances. No one can fully project into the future, but at least you can consider current circumstances. For instance, if you’re inclined to select a sibling as guardian, do they already have kids? Are they single, married, or in a relationship? You don’t want your child to be thrust into chaos when a safer choice may be available. Consider whether both they AND their spouse (or future spouse) would have the capacity and desire to provide your children with the time, attention, and support they will need.
After discussing it with the individual, choose the best person for the job and designate an alternate if that person can’t fulfill the duties. Parents frequently name a married couple who are relatives or close friends. If you take this approach, ensure both spouses have legal authority to act on the child’s behalf.
Coming to a final decision.
Be sure to review your choice of guardian in coordination with other aspects of your estate plan. This decision shouldn’t be made in a vacuum. For example, if you are comfortable appointing a friend or relative as guardian but are concerned about their access or ability to manage the financial assets you leave behind for the benefit of your children, consider a trust as part of your estate documents. In this document, you can name a different trusted friend, relative, or even a trust company as a trustee. Ensure the trust is documented so the guardian can easily obtain the resources necessary for your children’s care. This separation can be an excellent way for the guardian to focus primarily on raising your children while the trustee focuses mainly on building wealth and providing resources to the guardian for your children.
Be sure to revisit your will and estate documents as your children (or proposed guardians) reach different life milestones. If your children are older, perhaps you would now consider another guardian most appropriate. Maybe your planned guardians have divorced – you should amend your documents to provide only one spouse with legal authority or change the guardian completely. Furthermore, your view on the appropriate answer for your children may simply change over time from your initial plan.
Please do not hesitate to contact your Wealth Advisor to discuss estate planning, guardian considerations, or for an attorney recommendation.