Estate Planning for Parents of Young Children

Most of us never think about dying. But sadly, not all parents live long enough to see their children grow up. Sometimes the unthinkable occurs. If you pass away, what will happen to your children? Who will raise them? If one parent dies, the surviving parent will usually have custody of the minor children as the natural guardian. However, if both parents pass away, then a Court will decide who will become guardian. In its assessment, the Court will look first to the Last Will and Testament of the deceased parent(s), the document in which parents name their choice for guardian. It is important to understand, however, that although the parents have nominated the guardian in the Will, only a Court can actually appoint a guardian. The Court usually confirms the nomination of the parents with the understanding that this decision was not made lightly by the parents. There are some instances, however, when the Court, based on additional information and recommendations by family and professionals, appoints someone other than the parents’ first choice. For this reason it is important to nominate at least one alternate choice for guardian in the Will.

If neither parent had a Will nominating a guardian, the Court will look next to family members. Many times there is a clear best choice and both sides of the family agree. However, without a Will, the situation can be quite problematic. What if multiple family members step forward, each believing he or she is the best choice? This can result in a stressful, even bitter, prolonged and expensive guardianship proceeding difficult for everyone, particularly the children.

If you are having trouble choosing a guardian, pick someone “for now.” It’s okay to nominate somebody now that you will probably replace at some point. Children and relationships change, and your first choice of guardian may change over time as well. The important thing is that you have made your preferences known. However, merely telling others who you want to care for your children isn’t enough. A guardian is only properly nominated when it is done in a Will. Naming a guardian is perhaps the last and best gift that you could give to your children and family members.

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