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If you are a parent, the hardest part of estate planning is considering who will care for your minor children if you die. If you die and your children are without a surviving parent, a probate court makes that choice.
A legal guardian has custody of your children. They manage your child's education, well-being, healthcare, and living arrangements.
A critical estate planning document is a last will and testament or "will." In your will, you leave instructions on how you want your money distributed and who is your chosen guardian to care for your minor children. It is a good idea to name a guardian as well as a backup guardian if your first choice is unavailable or unwilling to serve.
Ha! Trick question. There is no "perfect" guardian, just as there is no "perfect" parent. The best guardian for your child is one who you feel will take the best care of your children. It is a decision that only you can make.
Trust your gut. Don't let family members dictate your decision. You know your children best. For example, you may have a close friend you feel is a better fit for your child than any of your family members.
There are many factors when evaluating potential guardians.
Consider how well you know your guardian. Do they share your goals, values, and parenting style? Think about what is truly important. You may not agree with all their political views, but your main focus should be on whether they will be a good caregiver for your children.
Consider if they are financially capable of caring for your children. You do not want to impose economic burdens on someone who cannot meet them. However, that should not disqualify an otherwise great choice. You can provide money for your children's care through a life insurance policy or assets left in your will.
If your guardian is great with your kids but can't manage money well, you can appoint a trustee to handle payments for your children's education, housing, medical care, and maintenance. For example, the guardian can handle the care, but the trustee can manage the money and property used for your children's care.
Is your guardian physically able to raise your children? Are they young enough to raise your children until adulthood? Do they have mental or physical challenges making childrearing difficult?
Are your children comfortable with the guardian? Will they need to relocate? Are they geographically close to another family?
Depending on your situation and your children's needs, you can name different guardians for each of your children. For example, if you have a teen in college near a relative, you might name that relative as guardian for that teen until they become an adult.
If your first choice of guardian is unavailable or unwilling to serve, you should have a backup guardian.
You may know exactly who you want as your child's guardian, but if you don't record it in your will as part of your estate planning documents, it is left up to the court to decide.
You and your children may adore your sister and brother-in-law. So naturally, you want to name them together. But what if they divorce and he remarries? Or your sister dies? Would you still want your brother-in-law as the appointed guardian? Name one guardian and then a backup guardian.
It is critical to have an honest discussion with your potential guardian. Describe your family dynamics and your children's temperament and needs. Ask them if they are willing and able to handle this responsibility and commitment.
Consider writing a letter of instruction to the guardian. Express your wishes for your children's care. Describe their personalities, medical needs, typical daily life, and educational and spiritual needs. You can express your desire for your children to attend a religious school or college and your dreams for them.
If you don't name a guardian in your will, the probate court determines who will get legal guardianship of your minor children, and it may not be the best person for them. Additionally, there could be legal challenges from unhappy family members. A court battle will cause uncertainty and stress for your children.
In the event of your death, the court will look at your will and usually will give great weight to your choices since you know your children best.
However, their job is to look out for the best interests of the child. They look at each child's needs and your guardian's qualifications. So if you appoint your brother as your children's guardian, but in the meantime, your brother is in jail or develops a drug addiction, the court will choose another guardian.
Choosing a guardian for your children is difficult; drafting a will isn't. You can do it yourself using online estate planning services. However, if you have questions about naming guardians for your children or have a child with special needs, it is best to seek legal advice from a local estate planning attorney. Picking a guardian for your children (and putting it in writing) will give you peace of mind and secure your children's future should something happen to you.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.