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August 04, 2021

How do I name a Guardian for my children if I were to die unexpectedly?

Nominating a Guardian for your minor children is something that is done in your Last Will and Testament. For many clients this is a top priority when creating an estate plan.

Technically, a court names the Guardian of your minor children. However, in your Will you will have the opportunity to nominate who you would prefer. This nomination is given tremendous weight. The court will almost always honor your nomination.

Only in rare instances would a court decline your nominee. Examples of when a court might skip over a proposed Guardian include:

-The nominee is deceased

-The nominee is incarcerated

-The nominee is severally physically or mentally ill

-The nominee has left the country

-The nominee declines to accept the appointment

For a wide variety of reasons, it is wise to nominate multiple back-up Guardians, if possible. You never know what the future may hold, and it is better to err on the side of a longer list than a shorter one.

What if I share custody?

If you share custody, you should still voice your preference for your child’s Guardian. If the child’s other parent were ever found unfit, or if you should die simultaneously—your nomination may ultimately be named the child’s Guardian.

Criteria for picking a Guardian

There are a great number of factors to consider when selecting a Guardian. Most would deem this the most important decision one makes in preparing an estate plan. I typically advise clients to consider the following:

-The overall character and level of responsibility of the nominee

-Your child’s relationship with the nominee

-The nominee’s desire to raise children

-The age and health of the nominee

-Religious considerations (if applicable)

-Geography (relocating a child, can be less than ideal)

-The financial means of the nominee

-Other considerations, based on your beliefs and values

Additionally, it is always a good idea to have a discussion with anyone you are planning on nominating. This is obviously not something you would want to surprise someone with, should you die unexpectedly.

Should I include couples or just individuals?

Assuming, you are wanting to nominate a couple that is a blood relative—it is wise to only include the individual to whom you are related. Couples obviously get divorced from time to time, and you would not want your ex-brother-in-law or ex-sister-in-law listed as a proposed Guardian.

How many people should I list as Guardian nominees?

The more, the better. I advise clients to list a primary nominee and at least 2 or 3 back-ups. A back-up will only be called upon if the primary nominee is unable (or is skipped over for some reason). Back-ups are listed in order of priority, so those further down the list would be less likely to be utilized.

Ultimately, Guardianship nomination is extremely important if you have minor children. Speak to an experienced estate planning attorney to have your nominees listed in your Will.

This article represents the opinion of the author and is intended for educational purposes. This article does not constitute legal advice, nor does it create an attorney-client relationship. One should always consult with an experienced attorney before making estate planning decisions.

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