Most people realize sometime around retirement age that they should have a will in order to distribute their assets and wealth accumulated during their lifetime. But, you ideally need to have a will much sooner, especially if you’re in the parenting phase of life, according to a recent article “Why parents need a will to establish legal guardianship” from Wausau Pilot & Review. That’s because a part of your children’s future depends upon your having an estate plan in place and naming a guardian is a crucial component of that plan.
As parents, you have the opportunity to name the person who will be your children’s guardian in the event that both parents die and your children are under age 18. Your will can also include information regarding who they should live with, who will be in charge of any funds they will inherit, and who will raise them. Because parents will sometimes die at the same time, having proper estate plans and identifying a guardian is critical. It’s not a pleasant thought, of course, but without a will to name a guardian, children may be put at risk.
For example, naming a guardian can avoid your children being placed in temporary foster care until a judge decides who should raise them. Being with a trusted family member or friend during a catastrophic time in their lives would be far, far better than being cared for by people they don’t know, no matter how well-meaning they may be.
If one of the parents survives the other, the custody and care of the children generally remains with the surviving parent. In most cases, the court will honor a deceased parent’s request for the person named in the will, unless it is determined this person may not be the best person to serve as guardian. The guardianship becomes legal with a court appointment after a court hearing, although laws and procedures do vary from state to state.
Since the purpose of a guardian is to take action during a critical and potentially difficult time for your family, it’s wise to be careful when choosing a guardian. Make sure that the person is ready, able, and willing to serve. There is no obligation for someone to accept the appointment, so evaluate your choice carefully. Like your estate plan, this is not a one-and-done appointment. It should be reviewed every few years, as your children grow and their needs change.
Consider these questions when figuring out who would be the best guardian:
- Does the person share your belief system in education or religion?
- Can the person raise your child until they reach legal age? Parents are often the first person we think of, but is a 68-year old grandparent with health issues capable of serving in this role, especially if the child is a toddler?
- Does the person live nearby, or will your children need to change schools, lose friends and leave the family home?
Guardianship needs to be integrated into the rest of your estate plan. For instance, if you have a life insurance policy, is the designated beneficiary your child? A minor cannot inherit assets, but a trust can. Your estate plan may include a trust to own funds and a trustee to manage them. Will that person be the same as the guardian? There are as many good reasons to divide the roles as there are to keep them separate.
Your estate planning attorney in Davie, Florida can help you and your spouse work through the issues based on your unique situation. The peace of mind you’ll feel in knowing your children will be cared for if the worst happens is well worth the time and effort you put in.
Reference: Wausau Pilot & Review (Oct. 23, 2022) “Why parents need a will to establish legal guardianship”
