One of our main responsibilities as parents is making sure our children are cared for at all times. This is true whether we are at home, at work, or if we pass away before our children become adults. Although the thought of dying or becoming disabled while your children are young is an unpleasant one, there are steps you can take today to make sure they are cared for in case you can no longer be there for them.
Using a Last Will and Testament to Name Guardians
Although the primary purpose of a last will and testament is passing property at death, this important estate planning documentcan also be used to name guardians for your minor children. Your will can name a single guardian or multiple guardians (for this article, I will assume that two guardians are named). When naming multiple guardians, it is possible to designate them as serving individually (power to make decisions separately) or jointly (decisions must be made jointly). It is also possible to name conditions that will affect who is guardian. For example, you may name your parents as guardian until they reach a certain age, in which case a successor guardian would take their place.
It is crucial that your will is properly drafted and executed. Without a will designating guardians, or with a will that was not properly drafted and executed, a court will be responsible for appointing guardians to care for your minor children. Although there is a possibility the court will appoint the same individuals you would choose, there is also a significant possibility that the court will appoint someone that you never would have considered. Therefore, you should make sure to have your last will and testament properly drafted and executed as soon as possible.
How to Choose Guardians
When you are deciding who to name as guardians, you should sit down with the other parent, if applicable, and create a list of potential individuals. It is important that you both agree to name the same guardians in each last will and testament so that there is no discrepancy. If you name different guardians and you both pass away at the same time, a court will be responsible for deciding which guardians should be appointed. (Note: If the two of you are unable to come to an agreement, you should still name guardians in your will so that the court will be deciding between the options you and the other parent have chosen.)
Once you have made a tentative decision, you should ask yourself several questions about these people:
Are they financially capable of raising my children until 18 years old?
Do they share similar beliefs and morals with me? If not, will they be willing to raise my children as I wish?
What kind of relationship already exists between them and my children? Will my children be comfortable with them as guardians?
How old are they and what is their current health status? How old will they be when my youngest child reaches age 18?
Are they currently married and, if so, are they likely to remain married?
Do they have children of their own? Are you comfortable with their experience as a parent and will they be able to handle more children in their household?
Where do they live? Are they likely to remain in that location? What school district will my children be attending?
After you have answered these questions and have given the decision a good deal of thought, you should start the process of naming these individuals as guardians.
I've Decided Who I Want to Serve as Guardian, Now How Do I Ask Them?
Despite the fact that you've spent a great deal of time deciding who to name as guardians, those individuals are not required to serve in this role: it is a voluntary decision that cannot be forced upon anyone (other than surviving legal parents).
Therefore, you should discuss this decision with anyone you name as guardian for your minor children.
Many people who are asked to serve as guardian will be honored by your selection. After all, you are asking them to step into your shoes if anything terrible happens to you. And if they are offended or refuse to act as guardian, it is much better to discover that fact now rather than forcing your children to deal with it after you are gone.
You should set aside time to discuss this important topic with the individuals you name as guardian. You should explain why you have chosen them and what your wishes are for your children. Do not take anything for granted. You may think that all children should attend college but perhaps they do not. Maybe it's important to you that your children learn a musical instrument or are exposed to science while growing up - make sure the guardians know these facts.
It is also important to discuss any plans you have made for the financial support of your children (see below). Often times, individuals are much more willing to be named as guardians if they know the children have a source of money to aid in their care. Although there is no requirement to provide such financial aid, it is the considerate thing to do when you are asking someone else to raise your children in case you are unable to do so.
Be sure to expressly ask the guardians if they will accept being named in your last will and testament. Although this agreement will not be binding, it helps make the idea more real in their minds and yours.
Both of My Children's Parents Are Alive. Why Do I Need to Name a Guardian?
Guardians should be named whether or not both parents are in the children's lives. In a situation where both parents are involved, the deceased parent usually wishes to have the surviving parent take care of any minor children. However, if the surviving parent passes away without naming any guardians, care of the children will again be dependent upon the court. The same is true if there is only one parent involved in the children's lives from the beginning.
Another consideration is that many people spend a lot of time with the other parent of their children. For example, think about how many times you travel in a car together or are attend events together. If some terrible accident were to happen while the two of you are together, it is possible that you may both die at the same time. This scenario provides another reason why it is crucial to name guardians for you minor children today.
Providing for Your Minor Children After Your Death
In addition to naming guardians for your minor children, you can also use a last will and testament to establish a "testamentary trust" to provide for the financial support your children will need. A testamentary trust is one that arises upon an individual's death and is specified in that individual's last will and testament. You may place assets into the trust such as cash, vehicles, personal property, and real estate. A trustee is then responsible for managing these assets for the benefit of your minor children. The assets can be used to provide for the care, comfort, education, health, and any other use you designate. Once your children reach a designated age, the trust can be dissolved and the assets given to your children outright.
A testamentary trust is very useful when a guardian becomes responsible for your minor children. The trust can be used to make sure a neutral party is involved in using your assets for your children, preventing them from being used for the benefit of the guardians and their own children.
Another important method of providing for your children is life insurance. You should seriously consider taking out a life insurance policy and naming your children, or a testamentary trust for your children's benefit, as the beneficiary of such life insurance policies. Take a moment to calculate how much money you spend on your children in a given year including food, medicine, education, clothing, housing, entertainment, and any other costs involved in raising your children. Now multiply that by the number of years left for each of your children to reach the age of 18. Is the total larger than you initially thought? Life insurance provides an efficient method of making sure there is money available to raise your children in the case of your death.
The process of naming guardians for your minor children is not a simple one - then again, nothing worth doing in life is easy. However, with a little bit of consideration and discussion on your part now, you can make sure your children are provided for in the case of your untimely death or disability.
In order to appoint guardians for your minor children, you will need to have a last will and testament properly drafted and executed. You should also discuss this decision with the individuals you name as guardian. Finally, take the time now to decide how you will provide for your children if you are no longer able to care for them because of death or disability.
The Law Office of Justin P. Barnhart can draft and execute your last will and testament as well as set up a testamentary trust. We are here to help you in the process of naming guardians for your minor children and answering any questions your may have, as well as assist you with all your estate planning needs. Contact us today so that we can start the process.