Let me guess: You’re like so many of my clients who are responsible, caring parents. Of course this means that you’ve already designated a guardian for your children in the event something should happen to you.
Verbalizing your intention to name someone as a guardian of your children should something happen to you is a good start. However, it’s not enough.
Letting the party you’ve determined you’d want to raise your children know that your intentions are for them to step into the role of guardian if something happens to you is important. Expressing your intentions regarding guardians in a will is even better. It will guide the probate court and advise them of your intentions should something happen to you. But, even expressing your intentions in a will does not guarantee your intentions are realized.
In order to protect minor children, the following 3 things must occur:
A trust must be established
Permanent guardians must be named in the trust
Temporary guardians must be named in the trust
You need to establish a Trust-based Estate Plan
As discussed in earlier chapters, where there is a will, there is a probate court action.
Where there is a probate court action there is a judge who makes the final determination (sometimes despite the intentions you set out in your will).
Judges take a lot of factors into consideration when determining who will be ordered guardians of minor children.
I have seen and/or heard of various factors in different jurisdictions that judges consider when choosing a guardian for minor children. Usually state law sets forth factors for selecting who should be guardian.
However, courts often have a lot of discretion and may consider factors in addition to those provided by law. Credit score, relation, employment, age, geographic location, religious beliefs, income, criminal history, marital status and whether the candidate has their own children can all play a role in determining who is appointed guardian of a minor child.
I have a colleague who had a reality check moment when she realized that if something happened to her, the judge would likely appoint the one person she least desired to raise her children. This person was her sister-in-law. My colleague Morgan’s sister-in-law had been married to a physician (Morgan’s brother) for nearly 20 years. They were in their mid forties. Her sister-in-law was a stay-at-home-mother with two of her own children. She volunteered and was on the PTA Her children were cousins to Morgan’s kids and they spent most holidays together as families.
On paper, Morgan was the perfect guardian, the mostly likely person to step-up as guardian and the most likely candidate to be appointed by a judge as guardian.
Despite her sister-in-law’s spotless resume’, Morgan knew more about her than any judge would ever learn. Morgan’s brother and sister-in-law had experienced discourse in the marriage for more than a decade. Their relationship had endured several affairs.
In Morgan’s eyes, her sister-in-law was not much more than an opportunist looking for a payday. More importantly, Morgan felt her brother and sister-in-law were not present in their children’s lives. They didn’t have the same parenting values and their oldest son was having trouble with skipping school and drug abuse.
Morgan realized that she had to do something. She created a trust and specifically, yet confidentially disclaimed her brother and sister-in-law as potential guardians of her children. By doing this, Morgan ensured that her children would never be raised by her brother and sister-in-law temporarily or permanently. She could ensure this because if her brother and sister-in-law challenged the appointment of the guardian that Morgan named in her trust, the trust specifically disclaims them as unde