There’s more to having a will than just deciding who gets your things when you die—especially if you have children below the age of 18. Consider the following story:
Jenny and Paul were a thirty-something couple with a modest, middle-class income, but doing well for themselves. On their way home from a dinner party, they were unfortunately killed in automobile accident, leaving behind two children—an 11-year-old daughter, Lindsey, and a 9-year old son, Matt.
Thinking they had plenty of time and not enough in savings to bother just yet, Jenny and Paul had put off writing a will. They figured Jenny’s parents who lived 15 minutes away would simply take care of the kids if anything happened. The courts didn’t see it that way. The judge felt Jenny’s parents were too old and not in good enough health to care for the kids, and Paul’s parents were deceased; so he awarded guardianship to Jenny’s estranged brother, who lived on the West Coast and had never actually met the children.
This story has two important takeaways:
- Your will is about more than just your belongings. No matter how few your assets, if you’re a parent, you have a treasure worth guarding that is worth far more than anything else you own.
- If you don’t specify who should care for your children if you die, the court will decide for you.
The question of guardianship for Lindsey and Matt could easily have been settled by creating a will and naming Jenny’s parents as co-guardians for the kids. It also would have spared both the grandparents and the children a lot of additional heartache.
The Process of Choosing a Legal Guardian
Deciding who should raise your kids in your absence is certainly not an easy decision—in fact, it will likely be the most difficult part of making a will. When considering your options, here are a few things to keep in mind:
- It should be someone who has beliefs and values similar to yours.
- It should be someone who exercises good self-discipline and personal responsibility.
- It should be someone who loves your kids and is willing to do what it takes to raise them.
- It should be someone who can reasonably handle raising your children until they are 18 years of age. (The grandparents may love and even want to raise the children, but if they are elderly or in ill health, they may not be physically able to do so.)
- Take location into account. It’s not always possible, but if the kids can stay in the same town and even go to the same school, it might be easier for them in the long run.
The Devil in the Details
Having decided on a guardian, it’s a good idea to broach the subject with them and find out their level of willingness to shoulder this responsibility, if necessary. You may be surprised at their response. Try not to be too disappointed if they decline—it really is a lot to ask of someone, and people tend to be freer with their affections and support if they don’t have the responsibility to go along with it. It’s better that you know now, because if you simply name them and they decline at the reading of the will, it’s basically back in the hands of the judge to decide on a guardian. Make sure you have a willing candidate before finalizing it.
Once you have named a guardian who has agreed to the responsibility, here are a few more details to consider:
- Make sure you set aside provision for your children’s care in the will. The legal guardian is not required to take financial responsibility for the kids, nor should you demand it.
- You may want someone else to watch the children’s inheritance. Your child’s legal guardian doesn’t also need to control the money unless you trust that person implicitly. You may appoint a guardian of the estate (or a trustee, if you set up a trust) who can oversee the children’s expenses and watch over the inheritance until they come of age.
- Remember that the other parent (if living) has familial right of custody. Normally if one parent dies, the other parent assumes guardianship automatically, regardless of marital status. If there’s a reason why this shouldn’t happen, spell it out in the will with an attorney’s help.
- Review your guardianship arrangement every few years. Just as you may need to update your will from time to time, your relationships and feelings about the legal guardian may change. If so, you may want to revisit this issue and select a new one.
- The court may still override your decision. If you name someone in the will who is physically or emotionally incapable of guardianship, the courts retain the right to step in for the best interests of the children. However, in the vast majority of cases, the courts will honor the expressed wishes of the parents as described in the will.
No one particularly wants to think about passing away and leaving children behind, much less choosing someone else to raise them. That’s understood. However, addressing this question is one of the most loving things you can do for your kids. Careful planning ensures that your family’s most important treasures will be properly cared for according to your wishes, giving you more peace of mind in the process.