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"Who would take care of our children? I am not sure anyone would be willing to accept that responsibility," remarked Shelly to her attorney, Jim. "It's not that they aren't good children. They are all fine, but there are 11 of them! If something happens to Pat and me, who will take them?"
One very important decision for you to make when creating a plan is to decide who would be the guardian of your minor children. When you write your first will, it is very possible that you still have minor children at home. While you may not have 11 children and face the challenge that confronted Shelly and Pat, this is still a very crucial and important decision.
Your guardian will raise the children, teach them values, select the schools they attend and perform the functions of a parent. If you do not have a guardian selected in a will, a court may select a person. That person may not share your cultural background, your religion, your general world view, or any other aspects of the character that you think important for the person who raises your children. By selecting a guardian and an alternate in your will, you have a much better prospect of finding someone that you think is the right person to raise your children.
If there are two parents, normally the survivor will be selected as the guardian of the children. But if both were to pass away, then it would be necessary to select a guardian.
Even if you select a guardian, there could still be an objection or contest by other family members. The probate judge usually will approve your selection unless there is strong evidence that indicates the person is not qualified. For example, evidence of alcoholism, criminal background or a history of child abuse could lead the judge to select another person. However, in nearly all cases the person that you select is chosen because he or she is the best possible individual to raise your children.
There are several reasons why a person may be a single parent in our society. A single parent may never have been married, there could have been a divorce, or the spouse could have passed away. In all three cases, it is especially important for single parents to have carefully selected a guardian.
If you have divorced and remarried, it may be your desire to have your new spouse as the guardian for children from your first marriage.
Normally, children are placed with their biological parent. However, if you can show good reasons why it is in "the best interest of the child" for your new spouse to be guardian, the court may permit him or her to raise your children. It is desirable for you to write a letter that is retained with your will to explain your reasons why the biological parent is not a good choice and how your current spouse would be the best person to raise your children.
If you have a high level of trust in the person selected to be guardian, it is possible to transfer property outright to him or her. However, if you choose to entrust a guardian with your property, you need to recognize that the guardian will have complete control and may choose to use the property for other purposes. This may be an acceptable solution if you have moderate resources, but if your property is substantial, a trust may be a better choice.
With a moderate to substantial amount of property, it is quite common to create a trust. One person is selected as trustee to manage the property. He or she then transfers the income and, if required, principal to the guardian. The combination of one person managing the property and the guardian raising the children provides checks and balances that achieve the best result for the child.
