When you have minor children, your should always name a guardian of their persons and property. Naming alternates who could be a guardian if your first choice is unavailable or unwilling is a good idea, too. You should name this person or persons in your will.
A guardian would only take over if both parents die. If there is a surviving parent, that person is automatically the guardian. In case of divorce, the parent with legal custody would name the guardian. Be aware, though, that naming a person other than a natural parent may not be binding.
If the proposed guardian is someone other than a parent, the courts will have to approve that person. Unless declared unfit, the non-custodial parent always has preference. This is the main reason to name someone specifically in the will.
Obligations of Guardians
There can be more than one guardian: One can be appointed for the child and another can be appointed for the child's property. You may want to carefully reconsider leaving assets to young children even if a qualified guardian is available. Guardianship is a cumbersome way to manage financial affairs. Reporting and accounting has to be made to the courts and flexibility is limited by law. A trust is the usual choice in this situation.
For the most part, guardians aren't legally obligated to support their wards out of their own pocket, and it might be a strain on them as well. Adequate funds through life insurance or other funds should be available just in case.
More importantly, guardianship ends at the age of majority - sometimes 18, sometimes 21. From then on any property left to a child is exclusively owned and controlled by the child and, leaving a significant amount of assets in cash to a child can be unwise.
Questions for Your Attorney
- In my circumstance, would it be advantageous to appoint a guardian over my child's property or to provide a trust for my child?
- My child's mother/father has a (drug, alcohol, etc.) problem. How can I prove to the court the other parent is unfit to raise our kid?
- Should I name a guardian in my will for my child, even though I'm healthy and I don't think anything is going to happen?
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