The children need someone to keep them safe, even after loving parents are gone, and the idea of guardianship comes into discussion. If there is no will or trust arranged for their security in the future then a probate court will be left with the choice and after assessing the situation, apoint a guardian it selects or place the children with a foster family. Estate planning is the means of protecting your family. Guardians must be appointed following the death of both parents unless an adoption can be arranged.
Estate planning works to assure that certain things happen at death. Often ignored because of fear of death. This fear may really be worry about care for dependents. It may come from the knowledge that personal plans and projects will come to an end, minors have neither the legal right to manage property nor to make many major life decisions, such as to determine their place of residence or to decide what school they will attend.
Until a young child reaches the age eighteen in most states, marries or is otherwise emancipated, a minor’s parents are legally responsible for the minor’s custody and care. Guardianship of a minor’s property becomes an issue if the minor acquires significant assets, due to an inheritance or personal injury settlement, for example. A minor’s parents do not have the legal right to manage their child’s property, for them to do so, they must be appointed as the minor’s guardians by a court.
It is important for divorced and single parents to have a will or some official designation of guardianship for their young children. The will or trust of the last parent to die controls guardianship for the children, and if the mother dies with a will and then the father dies without one, the mother’s will designates who should be guardian for the children. Being guardian of a minor’s person becomes an issue whenever there is need for someone other than the parents to assume the child’s custody.
Some parents permanently postpone writing a will because they cannot decide who to name as guardians of their children. In their indecision, they leave the court with no guidance and their children with the possibility of inappropriate guardians. It is far better to name a first and second choice for guardians now and to change the designation later if better choices evolve, than to postpone this decision completely.
Parents need to think first in terms of support, and need to be realistic about their resources. When discussing the care of their children, parents often say they want their estate used for an education without thinking about how the children will be supported until they are of college age, or whether the children could be college bound at all without their parents encouragement. To parents, estate planning can reduce such fears, whether through creating a will or creating a trust.