When creating an estate plan with minor children, one of the most important decisions is choosing a guardian to care for them if you pass away prematurely. While naming guardians in your will provides clarity on your wishes, relying solely on this can fail to adequately protect your children. There are a few key risks to consider.
No backup if named guardians cannot serve: By only naming a single first choice for guardian in your will, you leave no alternatives if that person cannot or will not serve as guardian for any reason. For example, the person you name could pass away before you or have a major life change that makes them unable to take on guardianship. If no backups are named, the court will have to choose a guardian, which may not be someone you would have wanted to raise your children.
No guarantee the court honors your choice: While courts typically try to respect the intent expressed in a deceased parent’s will, judges are not obligated to honor your guardian selection. If evidence suggests your chosen guardian would not provide a suitable home or be in the child’s best interests, the court can appoint someone else instead. Relying solely on your will provides no way to ensure your preferred guardian is the one selected.
No guidance for the guardian on raising your kids: A will names a guardian but provides very little guidance or conditions for raising children. By only including someone’s name in your will, you are trusting that individual knows how you would want your children raised and cared for without giving them any direction. If you have certain values, beliefs or priorities you want instilled in your children, this information needs to be provided to the guardian separately from what is in your basic will.
While naming a guardian in a will is an important legal task, it should not be the only effort made to protect children in an estate plan. It is also wise to consider a temporary guardianship arrangement in case both parents become incapacitated prior to death.
The solution – A standalone guardianship document: The best way to address the risks of only naming guardians in a will is by creating a standalone guardianship document. This comprehensive plan clearly designates a first and multiple alternate guardian choices, outlines guidance and conditions for raising your children and includes a letter of intent summarizing your core wishes. Having a detailed guardianship arrangement, in addition to naming someone in your will, helps ensure your children are properly cared for by an appropriate guardian in the event of your untimely death. Going beyond just a will is essential for fully protecting minor children through estate planning.
Send your questions to ccolan@colanlegal.com and use “Alpine Mountaineer estate planning question” as the subject. We’ll answer your questions in our upcoming issues.
This article is provided by your local estate planning attorney, Corina Colan.
The Law Office of Corina I. Colan / (909) 265-3315 / www.colanlegal.com
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