If you and your spouse suddenly and unexpectedly passed away, who will be left to take care of and provide for your minor children? This is about the most frightening question a parent can ask. After all, we do not want to imagine our children growing up in a world without us.
Having a last will and testament is crucial for all parents to have, particularly because minor children are completely financially and emotionally dependent on their parents.
If you have children, drafting a will enables you to direct whom you wish to nominate as a legal guardian for them in the event of your passing. Upon your death, the courts will appoint this person without notice or hearing, presuming that there exists no other living parents to the child and that the nominated person is willing to act as a guardian. You should, in advance, name at least one individual in your will that can raise your children and handle your finances. It’s best to also name an alternate in case your first choice cannot serve.
If you have a will that names a guardian for your minor child, it is highly unlikely that the probate court will appoint a different guardian. If, however, you do not have a will that names a legal guardian for your child, then all core decisions regarding your child’s care and inheritance will fall into the hands of the state. The overriding consideration in this scenario will be the best interests of the child—and the person you may not have chosen to raise your child may possibly be the appointed guardian by the probate court.
If you are willing to contemplate the worst for a short while, an attorney can help you draft an appropriate will. One element is at times called an executory trust, which goes into effect something does happen and both you and your spouse die. Under an executory trust, you are able to appoint someone of financial ability as trustee of your children’s funds until they mature. Likewise, you may also appoint someone of great love and maternal care to have physical custody of your children.
Selecting a Guardian
The process of selecting a guardian may be either easy or difficult. You may consider someone who is able to best financially support your child, or someone who can provide for your child’s emotional support. The preferred legal guardian is an individual whose philosophies, beliefs, goals, and child-rearing values are the most similar to the child’s natural parents. Of course, it is best to discuss such issues with the person or persons you consider naming.
While you are not legally obliged to discuss your choice of guardian with the person named in your will, remember that later on, the guardian must agree to serve. If your candidate for a guardian does not agree, then the probate court will accept applications from individuals who do wish to serve as a legal guardian.
Consult with an Attorney
Drafting wills for such delicate relations is an art as well as a science, so it is best that consult a knowledgeable attorney. Death can often result in a grieving family, and can potentially lead to disputes. When a loved one passes on, James B. Griffin can help your family to carry out the wishes documented in your loved one’s will, and can compassionately guide you through the legal process. Call (205) 502-2199 today for more information.