Is there any decision more important than who will raise your children if you were to pass away? Every person with minor children should consider this question and should take a simple estate planning step to answer it.
MAKING THE DESIGNATION
The decision on who will raise your children upon your death is called a guardianship designation. This decision is made as part of your Will. Even if you have a Revocable Living Trust, you still must make the guardianship designation in your Will. Most people will choose their spouse (or the child's other parent, as the case may be) to serve as the sole guardian in the event of their death while the child is still a minor. But what if the other parent is unable or unfit and what about the situation that unfortunately happens where both parents pass aware while your children are still minors? Who should be their guardian in that situation?
Choosing a guardian is often one of the most difficult decisions made in planning an estate. However, it is critical that this decision is made as the Courts and feuding families will decide if you don't. Consider your own family, even if they are great people, and how they would handle the situation if you were to pass away leaving minor children? Would they be motivated to care for your children? Would they do it only if no one else stepped up? Who would step forward? Would they expect to be paid or to have their expenses reimbursed by your estate? Would they provide funds for your children in a manner you would approve? Would they pay for college or church or volunteer service from your estate? Would they instill the values you want for your children (religious or otherwise)? There are so many important considerations. Here's a quick list of tips to consider when making a guardianship designation.
GUARDIANSHIP DESIGNATION TIPS
1. Decide Now
Don't wait and don't get hung up on the decision that you end up making no decision. Make a decision on who would be best and remember that this can be changed at any time by signing a simple amendment.
Of course, it goes without saying that whomever you choose must genuinely love your children. This is something that may seem obvious but is something you're going to know and appreciate far better than a Court or feuding family members left to figure this out without you. Does your child love them? Think of your children and their relationship with your family or other loved ones when choosing a guardian. Do they love the family member? Could they rely on them and have a strong and meaningful relationship with them?
3. Ability and Practical Considerations
Does the person you're considering have the ability to raise your children? Perhaps they are your child's grandparents, are they physically and emotionally able to raise your children until they are 18-19? Maybe it's your brother or sister or close friend, would their home accommodate your children? Would they be able to financially make arrangements so that they'd be able to raise your children?
4. Should You Separate the Money?
What about the money? Well, it's likely that if you and your spouse pass away (as applicable), that your minor child(ren) will be the heirs to your estate and would be entitled to your assets. Now, we're assuming that as part of your estate plan that you included provisions so that your children don't get an outright inheritance when they are 18. Also, a well drafted trust will have certain conditions on the funds and when they can be used by the guardian for the child(ren). These conditions would allow the trustee of the trust to distribute funds to the guardian for educational, support, and medical expenses and maybe for church service or a first-time home purchase. But, should the guardian of your children also be the trustee of your trust and thereby have control of the trust assets? While it's entirely possible that someone can adequately serve both roles, it may be more prudent to select someone who is better financially (and more secure themselves) as the trustee of the trust and then to select someone else who would better serve in the role as guardian. I had one recent client choose their father as the trustee of their estate (we picked a back-up too), and then the client chose their sister as the guardian of their children. Their father would oversee the trust and the funds while the sister would care for the children and would request funds from the father for expenses as may be needed for the children.
5. Choosing One Person over a Couple
Do you choose a couple (say brother and sister-in-law) or do you just choose one person to be the guardian (e.g. brother). Some people will choose their sibling and their sibling's spouse as the guardians when they really just want their sibling to be the guardian. If that's the case, just specify the specific person. There's no need to list both people and it can cause issues if the couple fights over issues or if they themselves split.
6. Do you Have any Specific Instructions?
It is common to place restrictions on the assets in your Trust during times when you children are minors or are in early adult-hood. These are excellent things to consider and will be part of a well-drafted Trust. However, you can also provide some instructions to your guardian in a separate writing or in the designation itself. This doesn't need to be lengthy and it usually isn't legally binding but you can outline certain issues that are important on how your children are raised. For example, you can emphasize that you want the guardian to encourage certain religious, artistic, family-activity, or personal endeavors. Warning though, don't get bogged down in this. Just make some short and definitive directions.
7. Inform Whomever You Select?
It is very helpful to inform the person you selected that you chose them to be the guardian of your child(ren). They don't need to formally accept but it is nice that they know and it is an opportunity for them to decline if they aren't willing. I had one client who was named as guardian for a family member's children. The family member passed away and my client (the grandparent) learned they were to become the guardian. The client was older and didn't feel fit or otherwise able to serve as guardian and thought other family members would better serve in this role. As a result, an aunt to the minor child was appointed by the Court and ended up serving as guardian for the child. This situation isn't the norm but informing someone that you want to list them as guardian gives you an opportunity to address this issue and to also let the person you selected know why you chose them with the most important role you can ask someone to take.
While this list is meant to help you make an informed decision on who should be listed as guardian to your minor children, don't get bogged down and over-analyze this decision. Consider the points, make a decision, get the estate plan done, and remember that it can always be changed and amended.