Your Will and Your Children Under the Age of 18 -Who Will be Appointed the Children’s Guardian?

If you have children under the age of 18 , then you should appoint a guardian for your children in your will.  The foregoing is true for married parents and single parents.   A will nominiates a guardian over the physical custody of your children and nominates a person over the inherited estate of your children.  You may nominate the same person, but in most instances one person is nominated the guardian over the physical custody of the children and another person  is nominated to handle the financial estate for the children.     

Nominating a guardian for your children allows the court to appoint the nominated persons in the event of your death.  Your intent to have the nominated persons be the guardians over the children is shown in your will.  The court assumes and accepts that you have intimate knowledge that the nominated persons will act in your children’s best interests.  If there is no will nominating guardians, then the court decides who will be the guardian over the physical care of the children.    The court will manage the children’s inheritance until they reach 18.

For married persons the lack of a will nominating a guardian is a problem in the event of a simultaneous death of both parents.  Without a nomination in either of the married parent’s wills the court appoints the guardian.    Married parents usually appoint one another in their respective wills as the first choice and then nominate a second person or persons as the second choice in the event neither parent survives the other. 

A single parent may nominate anyone including the children’s other natural parent.  A single parent, however,  may not want the children’s other natural parent to care for the children because of a custody situation or concerns about the surviving parent’s fitness.   If the single parent dies without a nomination, it is highly likely that the surviving natural parent  will be appointed  as guardian.  A  single parent may nominate whomever he or she wants as a guardian and it need not be the other surviving natural parent.  A single parent may write down in his or her will why he or she is   nominating another person besides the other surviving natural parent and authorize his or her estate to oppose an appointment of the surviving natural parent as guardian. 

Another document that all parents should consider is the Stand-By Custodial document.  This document appoints the parents ‘ nominated guardian in a temporary “stand-by” capacity as the children’s custodian until the court reviews the will and appoints the nominated guardian found in the will.   There is period of time between the death of a parent and the court’s appointment.  The stand-by custodial document fills that gap of time and places the children with the nominated guardian pending the court’s formal appointment.   The stand-by custodial document may also be used in the event a parent is unable to care for his or her children because of illness or coma or some other unavailable circumstances.  

If you have any questions, then please make an inquiry about your specific circumstances.   Please e-mail me at kaw@katewillmorelaw.com for information on this issue- just reference this blog and I will e-mail you a PDF file for your review.

About Kate Willmore, Esq.

Kate Willmore, Saint Cloud, Minnesota, divorce, custody and family attorney brings over 25 years experience to every client's legal matter. *** Licensed in Minnesota and in California

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