Choosing someone to care for your children is difficult. In fact, for many parents, it is the hardest part of the estate planning process.
If you are separated or divorced, the surviving biological parent of your minor children will continue to be their legal guardian, absent a court-proven case of unfitness. What happens if divorced parents name different guardians in their Wills? Most states specifically provide that the Will of the last parent to die controls.
It also may surprise you to learn your guardianship appointment is not necessarily binding. About half of the states require court appointment and approval of a guardian. In these “court-appointment states” the court is typically required to give “due regard” to your Will, but also may consider other factors, such as potential conflicts of interest.
Nonetheless, parents of minor children will want to make prudent choices regarding guardianship should those children become orphaned. While every family situation is different, here are some general pointers for your consideration when selecting guardians for your minor children:
- Select guardians who share your faith, values and life priorities; and already have an established positive relationship with your minor children;
- Consider, when selecting a married family member, appointing the family member only, in case your family member predeceases or they divorce;
- Make sure your legal plans provide for the compensation of the guardians, or at least that your children’s inheritance is available to cover all legitimate expenses incurred on their behalf; and
- Obtain the permission of the selected guardians before appointing them in your legal instruments.
In addition to guardians who will care for your children, you also may want to appoint an “inheritance manager” to manage and look after the money. If you don’t make a separate appointment, a court would likely appoint the guardian to serve as the inheritance manager, too. Very few divorced parents want their ex-spouses to manage the inheritance left to their minor children. Common candidates for this role include trusted family members or friends, professional inheritance managers (i.e., trust companies) or combinations of the two.
Practically speaking, you have three options.
Option #1: Appoint trusted family members or friends.
Option #2: Appoint a professional fiduciary, such as an institution (e.g., a corporate personal representative/trustee).
Option #3: Combine Options #1 and #2. In other words, your family member or trusted friend works in concert with a professional fiduciary, providing personal guidance while the professional fiduciary shoulders the management of investments, accounting and tax details.