In my last blog we discussed the role children play in the attorney’s craft of estate planning. As we turn the corner and approach Way Point #3, we need to discuss the related issue of minor children and, more importantly, to whom the testator would want to entrust the care of his and her most prized possessions … their minor children … in the event of the untimely death of mom and/or dad.

Who do you want to raise your children if you are no longer available?

Many people thing that the distribution of assets is the only function of administrating the estate of the decedent. Unfortunately, if the testator dies and leaves behind minor children, or other dependents, and fails to appoint a guardian, the court will also need to determine who will be appointed to care for these dependents now that mom and/or dad are gone.

Unfortunately, I have seen family members fight and argue over the caretaking of minor children when their parents pass away.  Without taking the time to memorialize in estate planning documents the testator’s preference in the appointment of a guardian for his or her minor children … a circuit court judge … as well-meaning as he or she may be … will make this important decision on behalf of the testator without knowing the decedent’s preference in the appointment of a guardian. An experienced estate planning attorney will address this all-important issue such that it will not be left to chance or post mortem legal maneuvering. The guardian of the testator’s minor children will be planned ahead of time thereby insuring that these precious charges of the testator will be raised by those hand selected by the testator.

Have you discussed this arrangement with the proposed guardian?

All too often I have seen well-meaning testators select a guardian for their minor children without discussing the same beforehand with their hand-picked caretakers. You will be asking the guardian to take on a monumental task. Be sure that you discuss this prospective appointment with the guardian before memorializing the same in your estate plan. Go over all issues Understand the chaos that can be created when the desired guardian fails to serve upon the death of the testator. All of this can be avoided with proper communication between the testator and the prospective guardian prior to the drafting and execution of the estate plan.

Summary:

As you can see, this blog’s discussion is grounded more in common sense rather than it is in the law. Nonetheless, if the testator fails to name his or her preference in the appointment of a guardian, the court will do it for you.

What are your thoughts ... questions? We would love to hear from you.