What’s something that’s super morbid and sad to think about but that is also super important? Guardianship for your minor children. Putting a guardianship provision in your will is important if you have kids under 18. Without it, a court will typically make this decision on your behalf utilizing the child’s best interests, but the outcome may not always be what you envisioned. Thoughtful guardianship provisions in wills are crucial to ensure the future security of your babies and can also provide you with a whole lot of peace of mind. Let’s get into everything you need to know about guardianship provisions in wills.
Understanding guardianship
Legal guardianship is the act of appointing a legal guardian for a minor child. A guardianship is a permanent and self-sustaining relationship between a child and a caretaker. This relationship transfers significant parental rights and responsibilities to the guardian, including the child’s education, care, control, and decision-making. Without a will appointing legal guardianship, it is done through a judicial process that varies by state but generally involves evaluating any reports from social services and analyzing the best interests of the child.
Who should you consider for guardianship of your child?
This is a very personal decision to make. Only you and your child’s other parent can conceptualize who would make the best guardian in the worst-case scenario of your passing. Here are some factors to consider:
- Relationship with the child
- Age and health of the potential guardian
- Lifestyle and values alignment
- Number of other children or dependents
- Financial stability
- Existing family dynamics and relationships
- The potential guardian’s parenting style
Choosing between family members and friends can also be a contentious point to consider. Appointing friends over family members may cause disputes or conflicts if you were to ever pass away while your kids are still minors.
Drafting guardianship provisions in a will
Including a guardianship clause in a will is fairly straightforward—name the person who will take care of the child and all of the child’s affairs. You may also want to name a back-up guardian in case the first guardian is deceased, unwilling to be a guardian, or unable to be a guardian. For example, the language may say something like, “If a guardian or conservator is needed for any of my children, I appoint [Primary Guardian’s Name] as their guardian and conservator, responsible for their person, estate, and property. If [Primary Guardian’s Name] is unable or unwilling to serve, I appoint [Backup Guardian’s Name] as their successor guardian and conservator.”
It is important to include a back up guardian in case the first guardian you name is not able to step up to the plate. For instance, if the primary guardian changes their mind about being a caregiver to your child or is financially unable to do so.
Avoiding common mistakes in guardianship planning
There are some mistakes that you should know about and consider before appointing guardianship in your will. Here are some common mistakes to try to avoid:
- Choosing a guardian without discussing it with them first
- Not appointing a back-up guardian
- Assuming a family member will automatically assume guardianship
- Not considering the long-term implications of the guardianship appointment
- Not updating guardianship provisions as circumstances change
- Not considering devising assets to said guardian
Another way to avoid mistakes in guardianship planning is to hire an attorney who is familiar with the process. They can help you draft a clause that is clear, concise, and enforceable. In addition, they can advise you of other things to consider, as they have seen it all!
Guardianship and financial planning
When planning for your child’s guardianship, it’s essential to consider the financial implications. This includes determining how to provide support for both the guardian (if you are able and/or if they need it), who will be caring for your child, and ultimately, your child themselves. You might choose to leave assets to the guardian, your child, or both, ensuring they have the resources they need. Consider the ongoing expenses associated with raising a child, such as education, healthcare, and daily living costs. A well-structured estate plan will provide peace of mind knowing your child’s future is secure and your guardian is financially stable to be able to focus on your child.
Reviewing and updating guardianship provisions
One important consideration for including a guardianship provision in a will is the fact that you may need to annually review the will and potentially update as needed. For example, life is ever-changing. One year, you may be peachy-keen with your sister, the next, you might not be speaking. Things can change quickly and you’ll want your guardianship provision in your will to reflect those changes. If you want to make a valid change to a will, you should consider speaking with an attorney, as will updates and changes can sometimes be more complicated than just scribbling out someone’s name on the document.
The bottom line on guardianship provisions in wills
The bottom line is that if you have minor children, creating a guardianship provision in a will is crucial. You should first do some deep-thinking to determine who should be the guardian, and who should be the back-up guardian. In addition, you or an attorney should draft language that is clear and concise in the appointment of the guardian. Try to avoid common mistakes like not speaking to the potential guardians beforehand. At the end of the day, this is a huge decision and once you are able to get your wishes onto paper, you will breathe a huge sigh of relief knowing that your baby is taken care of no matter what the future holds.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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