Parents with minor children are always concerned about their welfare. Part of that concern is who will take care of their children if something happens to them. While you may not want to consider the possibility of your children being without their parents, you can, at least, have the peace of mind that planning ahead can provide. In California, you need to plan ahead for guardianship for your minor children, should anything happen to you.
1. What is guardianship?
Guardianship is a legal status bestowed by the court that allows a person to care for a minor child and make decisions on the child’s behalf. The laws governing guardianships are very different from one state to the next. In most jurisdictions, the person seeking legal guardianship over a minor child must first file a petition with the court. While the court has substantial discretion in determining who would be a proper guardian, the preferences of the parents play a major role in that determination. The way to make your preferences known is to include provisions regarding guardianship in your estate plan.
2. Legal guardianship following the death of both parents
If one parent dies, the surviving parent will automatically remain the child’s legal guardian unless that person’s parental rights have been terminated. The problem comes when either the remaining parent dies, or both parents die at the same time. At that point, a guardian must be appointed by the court to have legal guardianship over the minor children.
3. Include guardianship provisions in your last will and testament
As you probably know, the last will and testament is generally used to provide instructions regarding the distribution of your property upon your death. Another purpose of a will is to appoint someone as guardian of your children, in the even they are still minors at the time of your death, and there is no surviving parent. Without a will, the court will decide who receives the property in your estate, based on the laws of intestate succession, regardless of what your intentions may have been.
The same is true with your children. If you do not have a will in place, at the time of your death, which appoints a guardian for your children the court will determine who that guardian will be, without any input from you. Do you want to leave that decision in the hands of an impartial judge?
4. Consider both present and future circumstances
Deciding who to name as legal guardian of your children can be a very difficult task for many people. Something important to remember is the possibility that a person’s circumstances may change in the future. In other words, someone who may seem like the perfect guardian today, may not be so perfect a choice in the future. Be sure to take into consideration the age, health and location of the people you may select as guardian. Be aware that these factors will likely change in the future. Therefore, it is a good idea to choose both primary and secondary guardians, in case there is anything preventing your primary guardian from serving in that role when the time comes. Ultimately, the court must determine if the person you have chosen is proper at the time the appointment needs to be made. Having an alternative will be very helpful for the court.
5. Be sure your legal guardians have everything they need to care for your child
In order to provide appropriate care for your children, your guardian needs to have access to sufficient financial resources. You can establish these resources through a testamentary trust. A testamentary trust actually becomes effective upon your death, pursuant to the instructions you include in your will or revocable living trust. For example, as most parents provide in their wills or living trusts that their children will receive equal shares of their estates, the guardian would instead have access to those assets, for the benefit of the children.
6. What if I don’t make provisions for a guardian?
If you do not include guardianship provisions in your will or establish a trust, the determination of who should serve as legal guardian of your children will be made by the probate court. While it is certainly the judge’s responsibility to ensure the best interests of the child are met, the decision may not correspond with your own wishes. For that reason, establishing an estate plan that includes guardianship provisions is the best course of action for you and your family.
If you have questions regarding guardianship or any other estate planning needs, contact the Northern California Center for Estate Planning and Elder Law for a consultation, either online or by calling us at (916) 437-3500.
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