Preparing for a future where you’re not there to take care of your minor children can feel like an unbearable task. Such a scenario feels impossible to think about in the first place, which can prevent you from engaging in the significant considerations and difficult decisions related to making sure your children are provided for after you are no longer here. As an experienced New York and New Jersey estate planning attorney, I am dedicated to helping parents navigate this emotionally challenging process. By appointing personal guardians and property managers for your children in your will, you can ensure their wellbeing and secure their future, even in your absence. This article demystifies these unthinkable circumstances and provides a guide on how to make these crucial appointments.
Guarding Your Children’s Wellbeing: Appointing a Personal Guardian
In most circumstances, a surviving parent takes over the responsibility of their minor children when the other one passes. But it is still necessary to prepare for the unlikely scenario where both you and your child’s other parent are no longer around to take care of your child. In such cases, a guardian must be appointed to look after your child. It is best to name your preferred guardian in your will because, if you do not, the court will be required to appoint one without your input. Naming a guardian in your estate planning documents will prevent any uncertainty about who would look after your child.
The court will respect your choice unless there is another surviving parent or a strong reason to challenge it. For example, another family member might convincingly argue that your selected guardian is not in the child’s best interests. These circumstances are rare but still possible.
To avoid a legal battle, which could entail significant court and attorneys fees, both parents should agree on the same guardian. The chosen guardian should be mature, caring, and willing to take on the responsibility. Ideally, they will be an adult with a close pre-existing relationship with the child. If you have multiple children, it might be best to appoint the same guardian for all. However, unique circumstances may necessitate different guardians for different children, for example, a child from an earlier marriage may be closer with a different adult than a child from a later marriage.
Moreover, it is wise to name an alternate guardian if your first choice is unable to take on the responsibility at the time of need. Consider the same qualities for your alternate choice as you did for your initial selection.
Protecting Your Children’s Assets: Designating a Property Management Guardian, Custodian, or Trustee
Besides items of negligible value, minor children cannot legally own property. This is true regardless of whether the property is inherited under a will, through a living trust, from a life insurance policy, or another source. Therefore, you must appoint a trusted adult to manage your children’s inheritance until they reach 18 years of age. This person can be known as a property management guardian, custodian, or trustee, and has the duty of making sure that the minor’s property is used or invested in a way that is in the child’s best interest.
You might plan to leave your property to your spouse, assuming they would provide for your children. However, consider the rare scenario where both parents pass away simultaneously or within a short span. In such a case, it is best to have appointed a reliable adult to manage your children’s inheritance. Similar to choosing a guardian, the property management guardian should be trustworthy, familiar with asset management, and align with your views on financial matters. Also, both parents should be sure to agree on who to appoint as property manager.
Please note, if you fail to name a property management guardian, the courts will not automatically assign this role to the surviving parent. That parent would need to request the court to be appointed as a property management guardian. This could incur significant time and attorneys fees. To prevent this, clearly specify your wish for your surviving spouse to assume the role of property management guardian in your will and also name an alternate property management guardian.
While some parents may choose to appoint the same person as both guardian and property management guardian, if you prefer different individuals for these roles, ensure they have a good working relationship as they would need to closely cooperate.
Executing the Designations: The Legal Path
You should designate the desired guardian in your will. If you do not, the court will be left to decide, and you will not be able to have a say in their decision.
As for property managers, you can also name them in your will, set up a trust, or establish a custodianship. Simple trusts and custodianships are often convenient as they avoid court involvement. Moreover, consider naming your children as beneficiaries in your life insurance policies. If you are using life insurance, remember that you still need a property manager to manage the life insurance payout to your children.
Planning for a future where you’re not present to care for your children is never an easy task. However, by carefully appointing guardians and property managers, you can ensure your child’s emotional and financial stability. If you are in New York or New Jersey and require assistance with your estate planning or have any queries related to the guardianship of your children, reach out to us at the Chamberlain Law Firm for a consultation through our website or by calling us at (201) 273-9763.