Guardian Minor Child Will Estate Planning

Appointing a Guardian for your Minor Child

If you have a child, you should do some basic (at least) estate planning.  In addition to distributing your assets, a Will can also designate a guardian for any child under the age of 18.

If you pass away, and the other parent is still alive (and a legal guardian), then they become the sole legal guardian of the child.  But, if you are the only legal guardian (due to the passing of the other parent, removal of their guardianship or termination of their parental rights), when you pass, the child will need a legal guardian.  This will be done by a Probate Court appointment of one.

In your Will, you can nominate a guardian for any minor child.  This is not an absolute decision however, and the Probate Court may disregard your selection, for good cause.  Presuming, however, that your pick is appropriate, the Court would likely follow your decision.  As they are responsible for the day to day care, the life decisions, and the upbringing of your child, they may be the most important decision you make.

How to Pick a Good Guardian?

While no two situations are exactly the same, there are some common themes in designating a guardian.

  1.  Don’t pick the person based on their financial situation.   The Guardian is different than the Trustee.  The Trustee is concerned with finances.  The Guardian is only concerned with the raising of your child.  Make sure to pick someone who will install your values, and who will raise your child as you would.  It may be the same person as the Trustee (there are reasons to make them different, and reasons to make them the same), but does not have to be.
  2. Pick more than one.   Always have a backup.  Even is you pick a couple as your first choice, pick a backup.  Family situations change, and you may not be aware of the internal turmoil of your first choice’s family.  They may say yes when you ask, but when faced with the actual choice, not be in a position to accept the appointment.
  3. If you are choosing a couple, be specific about “and” or “and/or”.  If you pick your brother and sister-in-law, what if only one is alive?  Be specific if it is your “brother and sister-in-law” or “your brother and sister-in-law or the survivor of them”. Specify what happens if they are not married at the time of appointment.

There are other decisions to make as well, but this is one of the most important.  Don’t rush it, don’t overlook it.  If you have questions, please call.


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For more than 35 years the real estate and estate planning lawyers at Kane, Hartley & Kane have been helping people buy and sell real estate and, through estate planning, provide for their families needs.

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