Grandparent guardians - Thirty years ago, there was
probably little concern over whether seniors should have to name
guardianship for minor children in their will. Today, many
grandparents are raising grandkids and even have full and legal
Often the child's parents are
incapable of raising the child(ren) for one reason or another.
Though the grandparents will may not be upheld in appointing a new
guardian, it will help to guide the court in coming to a proper
decision. Bottom line... when there are minor children, a Will should always be used to name a guardian(s) of their persons and property.
Alternate guardians should also be named.
For the purposes of this document,
it will be assumed that the child named in the will is assumed to be
the natural or adopted child of the person creating the will.
This should not be done any other way. Of course, if there is a surviving parent, he/she automatically is guardian, if living in the same household.
In a divorce situation, the parent with legal custody of the child(ren) should designate a guardian. Understand, however, that if somebody besides the other parent is named, this designation might not be binding; when a custodial parent dies, the non-custodial parent always has priority in seeking guardianship and custody, unless unfit.
Be aware, too, that the court will probably have to approve the proposed guardian eventually, even if named in a Will (unless he/she is the surviving parent, in the same household). The purpose of the Will in this regard, though, is to guide the court, and to avoid family arguments over who is better qualified.
Appointing duplicate guardians
If you feel it is necessary or appropriate, two guardians can be appointed - one over the child himself, and one (presumably experienced) over the child's property. Consider carefully, however, the appropriateness of leaving money or other property outright to young children, even if a qualified guardian is available.
Guardianship is a cumbersome way to manage financial affairs. Periodic reports and accounting to the court are required, and flexibility is limited by law.
More important, for many, is that guardianship ends at the age of legal adulthood (usually 18, sometimes 21). From then on, any property left to a child is exclusively owned and controlled by him/her. People easily recognize that it is bad to die intestate, unintentionally leaving half (or more) of everything to small children.
Sometimes they forget it might be no better to die with a Will, if it allows the same result, i.e., leaving property to minor children. That is often what happens when both parents die prematurely.
With or without a Will, those kids grow up to be 18 year old boys and girls, at which time the guardian must turn over the money (or other property).
Leaving assets in a trust
If significant assets are to be committed immediately at death to the direct benefit of your children (as opposed to their surviving parent), a Trust is the way to go. We will explore later several ways in which the surviving parent (or any mature adult) can also benefit from a Trust.
But a Trust is a must to keep your estate from eventually falling into the hands of teenagers, if you have left your children money and die while they are young.
F.Y.I. Guardians are not legally obligated to support the decedent's children out of their own pockets, and might not be able to, anyway. Public welfare benefits might be available, but it is unwise to rely on them as a first option. So adequate funds, through life insurance or otherwise, should be available to care for your kids.