Naming a guardian for your minor child and your child’s property is a vital (yet often overlooked) element of the estate planning process. Though it may come as a surprise, the person you choose to be the child’s guardian does not have to be the same person who oversees their assets.
The person who oversees their assets is referred to as the “Trustee.” Without the proper nomination in your estate planning documents, the court has no direction as to who to choose for either role.
How to name a guardian
When you meet with an estate planning attorney, you will learn that you can nominate a guardian for your child. This can be done only through a will. However, your trustee, who manages the child’s inheritance, can be nominated in either a will (through a testamentary trust) or a revocable living trust.
Each of your children will be listed in your will and from there, you have the opportunity to add a guardianship provision. If you pass away before your spouse or the other parent of the child, the other parent will most likely, by default, become the custodian of the child or children. The guardian provision ensures that a person of your choosing becomes the guardian if you and the other parent of the child pass away.
Your attorney can also ensure that any future children born after you execute your will may go to the nominated guardian even if you do not update your documents after the child is born. Although you should update your estate planning documents throughout your life and especially after the birth of a child, the provision can be drafted to cover afterborn children in case you forget to update your documents.
Why naming a guardian is important
Many people avoid estate planning because they underestimate how complicated things become by not creating one. Although distributing your assets and managing your finances and debts will be complex, failing to create an estate plan also poses the risk of having your child live with someone you wouldn’t have chosen.
From experience, many families are surprised when they discover who the deceased wanted as the guardian of their minor children—and this is from people who knew the deceased and had a strong relationship with them.
Imagine how challenging it is for the court to decide who is the appropriate choice if family and friends are unable to guess the answer. If the court is put in this position, they will look to your friends and family for input, but they will have to determine what is in the child’s best interest without any guidance from you.
Secure your children’s well-being with an expert estate planning consultation from Select Law Partners, PLLC
Naming a guardian for your children is challenging. However, these are the types of challenging conversations that estate planning forces to the surface. Some of the factors you should consider are where the possible guardian lives, how close their values are to your own, the age of the person you are choosing, and the guardian’s willingness to serve.
You want the best for your child, and as difficult as it is to think about, you can protect them even when you can’t be there. Contact Select Law Partners, PLLC, to schedule a consultation. We are experienced and empathetic legal professionals who can assist you with developing an estate plan that protects you and your family.
Matt Kurylo
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