Among the most pressing concerns of parents with minor children is who will care for the children if one or both of them die before the children reach adulthood.
Although contemplating the possibility of your early death can be wrenching, it is important to face up to it and adopt the best contingency plan for the care of your young children. If the other parent is available, then he or she can usually handle the task.
However, you and the other parent might die close together in time. Or you may currently be a single parent and need to decide what will happen if you do not survive until your children become adults.
This article discusses choosing a personal guardian to care for the children’s basic health, education and other daily needs. Choosing a person to manage your children’s property is addressed in another part of the will interview.
The general legal rule is that if there are two parents willing and able to care for the children and one dies, the other will take over physical custody and responsibility for caring for the child. In many states, the surviving parent may also be given authority by a court to manage any property the deceased parent left to the children—unless the deceased parent has specified a different property management arrangement in a will.
But there is no ready fallback plan if both parents of a minor child die or, in the case of a single parent, there is not another parent able or willing to do the job. Using Nolo’s Online Will, you can deal with these concerns by naming a personal guardian as well as an alternate. The person you name will normally be appointed by the court to act as a surrogate parent for your minor children if both of the following are true:
If both parents are making wills, each should name the same person as guardian for each child. This will help avoid the possibility of a dispute and perhaps even a court battle should the parents die simultaneously. But remember, if one parent dies, the other will usually assume custody and will then be free to make a new will naming a different personal guardian if he or she wishes. In short, if both parents are active caretakers, the personal guardian named in a will cares for the children only if both parents die close together in time.
Some people are completely intimidated by the thought of naming a guardian to care for their minor child. Others simply do not know any good candidates for the task.
If you are a parent who comes undone at the thought of naming a personal guardian for your young child, do not let that get in the way of making your will.
Complete the parts of your will directing who should get your property and who you would like to serve as executor. If a candidate for personal guardian later becomes more obvious, you can add the name when you update your will.
You may choose not to name a personal guardian for your child.
If the other parent is not alive or is not ready and willing to take over as personal guardian, the state court in which you live will be required to make the decision.
As is always the case, the judge must be guided by the best interests of the child if there is no surviving parent able to take on the job. In most such situations, he or she will choose a close relative such as your parents or a sibling.
To qualify as a personal guardian, your choice must be an adult—18 in most states—and competent to do the job. For obvious reasons, you should first consider an adult with whom the child already has a close relationship—a stepparent, grandparent, aunt or uncle, older sibling, babysitter, close friend of the family or even neighbor. Whomever you choose, be sure that person is mature, good-hearted and willing and able to assume the responsibility.
Common choices for the role of personal guardian are a grandparent, an aunt or uncle, or a stepparent.
When making your choice, name someone who:
Some states put restrictions on guardians who live out-of-state. In most of these states, an out-of-state guardian must appoint an in-state agent to receive legal papers. But in two states (Florida and Oklahoma), an out-of-state guardian must be a close relative of the child. Read more about Restrictions on Out-of-State Guardians.
You do not need to name the child's other biological or legal parent as guardian. He or she will automatically be entitled to custody unless the court finds that the child would be harmed. If both you and the child's other parent name a guardian in your wills, it is important that you both name the same person for the job. That way, if both of you die at the same time, there will not be a conflict as to who should serve.
If there are good reasons why the other parent should be your child's guardian, you can explain your reasoning in a separate letter, see below. It is usually difficult to prove that a parent is unfit, absent serious and obvious problems such as chronic drug or alcohol abuse, mental illness or a history of child abuse. The fact that you do not like or respect the other parent is never enough, by itself, for a court to deny custody to him or her. But if you honestly believe the other natural parent is incapable of caring for your child properly -- or simply will not assume the responsibility -- reinforce that belief by explaining why it is important that your choice for personal guardian be honored.
One obvious concern when choosing a personal guardian for your children is to keep them together if they get along well with one another. This suggests that it is best to name the same personal guardian for each of your children. There are families, however, where the children are not particularly close to one another but have strong attachments with one or more adults outside the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. Also, in a second or third marriage, a child from an earlier marriage may be closer to a different adult than a child from the current marriage. In these situations and others, logic dictates other advice: Choose the personal guardian you believe would best be able to care for the child. This may mean that you will choose different personal guardians for each of your children.
Nolo’s Online Will asks you to name a backup or alternate personal guardian to serve in case your first choice for each child either changes his or her mind or is unable to do the job at your death. The considerations involved in naming an alternate personal guardian are the same as those you pondered when making your first choice: maturity, a good heart, familiarity with the children and willingness to serve.
Courts are required to approve your nomination for personal guardian, based on each child's best interests.
In making this determination, courts commonly consider a number of facts. You might want to mull over the same ones when deciding what person to name in your will as your choices for guardian and alternate guardian.
Those facts include:
In addition, if a particular individual or couple has customarily spent a lot of time with a child, or has for any reason formed an especially strong bond with the child, courts may also be swayed by this consideration.
If choosing just one or two people for the job of guardian leaves you in a quandary because you know several people who are right for the job, or if you want to explain why specific people shouldn't care for your children you can do so in your Letter to Survivors. That letter won't have any legal weight, but a judge could use it when considering your choices.