As you draft your will, you may wonder what will happen to your children if you should pass away unexpectedly. Your will offers an opportunity to set these concerns to rest by naming a guardian.
When one parent dies, guardianship of a minor passes on to the other parent. In some cases, however, this isn’t an option. Perhaps the other parent has already passed away, isn’t in the picture, or is otherwise unable to care for the child. There’s also the improbable but still possible scenario that both parents suffer untimely deaths.
In the event that both parents are deceased—and no guardian has been designated—the courts will do their best to pick the best available adult to fill the role. Many parents would like the security of naming their child’s future caretaker, however, should the worst happen.
Naming a guardian in your will is a fairly simple process, but there are a few critical steps to ensure your child ends up in the care of the right person.
Different Kinds of Guardians
Personal Guardians. When both parents are deceased, a guardian steps in to raise the children until adulthood. The individual responsible for the care and development of a child is called the “personal guardian.”
This person takes over the legal right to make decisions regarding the child’s upbringing. This includes education, healthcare, location, and other important elements of childhood. The personal guardian also has a legal obligation to provide all the care, resources, and guidance that a parent would. Parents can set up a trust in order to help the guardian with the financial responsibilities.
Property Guardians. For various reasons, you may want different people to manage your child’s property and finances. When setting up a trust for your child, you can name a “trustee”—someone in charge of managing the funds of your child’s trust until he or she reaches a certain age. To learn more about leaving money behind for your children, click here.
There may be other valuable property you would like to leave in the hands of an adult until your child reaches adulthood. You can name a “property guardian,” who will be in charge of the property after you pass away. For example, if you bequeath your child your house, your property guardian can look after the house until your child reaches an appropriate age.
Your property guardian and personal guardian can be the same person, or they can be different people.
Factors to Consider When Picking a Guardian
It goes without saying that the guardian you choose should be someone you have a deep and trusting relationship with. It’s important that you have a conversation with the prospective guardian before you finalize your will, making sure they are willing and able to shoulder this serious responsibility.
You may also want to name multiple back up guardians in the event your first (or second) choice is unable to perform the duties if circumstances change.
You should also reflect on whether your potential guardian is capable of raising your children. Some questions you might ask yourself are:
- Does your potential guardian have a sincere commitment to the well-being of your children?
- Is the prospective guardian physically able to raise your children to adulthood?
- Will he or she have the time?
- Could you leave behind sufficient funds to raise the children? If not, can your prospective guardian afford the financial strain?
- Does the prospective guardian share your moral beliefs?
- Would your children have to move?
Naming the best guardian for your children is just one of the many important responsibilities of estate planning. Consulting with an experienced estate attorney will ensure your children, property, and finances end up where you want them.
About the Author:
Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.