Personal Guardians

If you die and your spouse survives you, he or she will naturally have custody of your minor children, so you might think there’ll be no need for a personal guardian for them. Even if you’re divorced, it’s almost impossible for the custodial parent to deny the noncustodial parent custody of their child if the custodial parent should die (there are rare exceptions, such as if the surviving parent is in jail or has been found incompetent by a court).

If you leave all your estate to your spouse, the children will presumably have no property to manage, so you might think there’ll also be no need for a guardian of their property.

But what if you both should die, say in a car accident? Your will should provide for that real--if remote--possibility by nominating one or more persons to fill these roles.

If both parents die, the law requires a minor child to have a personal guardian to step in and in effect become the child’s parent. Who would be the guardian for your children? Many people haven’t given this question enough thought. Questions to consider: Who would provide the best care for your children if you die? Is the home you choose large enough for them? Will their guardians have enough money to provide your children with the kind of education and environment you prefer? What sort of financial provisions should you make for the children?

Sometimes people delay their estate plans over the selection of the guardian. While this can be a difficult decision, it is better for the parents to select the guardian than it would be to have a judge make the selection. Parents know their children much better than any judge. A less than perfect decision is going to be much better than no decision.

Your will can nominate a personal guardian. The probate judge doesn’t have to accept your choice--although unless someone challenges that choice as not being in the child’s best interest, the court will almost always go along.

It’s better to nominate an individual as personal guardian; if you name a couple and they split up, what happens to the child? Be sure to consult with the person you name to be sure he or she wants the job, and name an alternative guardian in case your first choice should have a change of heart or die before the child is grown.

If You Don’t Appoint a Guardian

If you don’t appoint a guardian for your children, someone (usually a friend or relative) may ask the court to name him and her as guardian. If no one volunteers, the court can choose someone, generally the nearest adult relative. Again, the guide is the child’s best interest.