Important Steps (Executor, Guardian)

Name A Guardian

One of the most important decisions in estate planning is determining who should be named to care for your minor children (children under age 18 - 21, depending on the state in which you live). This situation would be important if both you and the child(ren)’s other parent were both dead. The person you appoint is called the Guardian. You may think that this situation is unlikely if both you and the other parent are young and still healthy, but you should still plan for the possibility of an accident or other tragedy striking both of you at the same time.

CAUTION: Without the proper estate plan in place, the courts might select guardians that you would not have chosen.

Even if you leave informal evidence of your wishes (an oral agreement or notes on a piece of paper), the courts are not bound to follow this. Act now to protect the future of your children.

HOT TIP: Always appoint successors in case the person you select cannot serve or predeceases you. Always talk to the people you choose before selecting them in order to gauge their willingness to serve.

CAUTION: If possible, try not to pick someone as guardian who lives in a different part of the country. Your child may be old enough to have established roots in his or her home area. If he or she just lost his or her parents, a move across country may simply be too stressful.

HOT TIP: If you are naming a person who is married to serve as guardian, do not list the spouse as guardian. The guardian and spouse may be divorced when you die and who would have custody of your child may be unclear. This could provoke a legal battle, thus placing even more stress on your child. If you feel strongly about both husband and wife as guardians for your child, consider naming one as guardian and the other as the alternate if your first choice is unable or unwilling to serve.

Whom Should You Select As Guardian For Your Minor Child?

• A legal adult who is very close to you, such as a family member or close friend.
• Someone who shares your values and principles regarding raising children, discipline, education, etc. In effect, you are trying to pick a person who will act in a similar way as you and who can create the same positive influence over your child.
• Someone who loves your child and wants to serve. A person who is raising children or has a real interest in doing so will usually make a better guardian.
• Someone who has time to help your child develop properly. If you select a husband and wife who are both career-driven, they may not give your child the amount of quality time needed to cope with his or her loss or with other issues they will face growing up, even if they mean well.
• Someone with whom you have discussed this appointment, and who will accept the position when you die.
• Someone who lives close to you and other family members.
• Someone who is in good health, energetic and (preferably) close to your own age. It may seem natural to choose your parents for this task. Ask yourself if they are too old to raise children a second time. Being a parent is a lot different than being a grandparent. Consider if their health will allow them to care for your child (especially if your child is small). You don't want your child to have to cope with the death of a guardian. Selecting someone from a prior generation only adds to these chances.
• Someone without any evidence of abusive or self-destructive tendencies.
• Someone who is in a committed relationship or married, if you believe that your child will benefit from more than one adult role model.

HOT TIP: In addition to your will, make a videotape leaving directions and instructions to the guardian on how you would like to see your child raised. Although not legally binding, it would be an invaluable reference for the guardian during difficult times.