Providing for Children in Estate Planning (Part 1 of 3)

Part 1: Appointing a Personal Guardian

One of the most common reasons people have for preparing an estate plan is to provide for their children in the tragic event that they and/or their spouse die before their kids are grown. This post will discuss naming a personal guardian for your child and the following posts will explore how property for children can be managed until the child is old enough to manage it themselves.

Finding a Guardian for Young Children

Before the age of 18, all children need a legal guardian to care for them. In the event that both of a child’s parents are deceased (or a child’s single-parent is deceased), another adult will be appointed by the court as the child’s “personal guardian.” Parents can name a personal guardian for their child in their will, however a court must approve the appointment before it can be finalized. The reasoning is that children, unlike property, cannot simply be bequeathed to another person. A judge will determine whether it would indeed be in the best interest of the child to appoint the named person as the personal guardian.

Typically, a court will not reject a named guardian if no one objects to the candidate. Of course, if there are obvious and serious concerns about the ability of the named guardian to care for the child (such as child abuse concerns, addiction issues, or criminal backgrounds) the court may oppose the nominee.

Preventing the Other Parent from being the Personal Guardian

In some cases, a parent may not want the child’s other parent to become the child’s guardian in the event of the first parent’s death. A parent may certainly express his or her desires in a statement in the will, however there is no guarantee that a judge will follow those wishes. Generally, if the other parent does not oppose the deceased parent’s desires, a court will approve the named guardian. However, a court will typically appoint the other biological or legal parent unless that parent is clearly an unfit parent (shows signs of addiction, violence, mental illness, etc.), has legally abandoned the child, or is otherwise unavailable. Nevertheless, courts are unlikely to appoint a more distant family member (someone who is not the other parent) as the guardian if the deceased parent has named a suitable guardian in the will. Thus a grandparent or uncle will not take precedence over a named non-family guardian.

If you are concerned about potential custody issues in the event of your death, it is advisable to discuss your situation with an attorney that practices family law.