Making a will is something that occasionally crosses your mind, it's one of those things you think maybe you need but don't have the time or desire to make it a top priority. In addition, there are many things that can deter you from making a will such as lack of money or property, the unlikelihood that something catastrophic will happen to you or just simply procrastination. However, if you are a parent, one of the most important reasons you should have a will is to appoint a person to care for your child upon your death and the death of the other parent. The care of your child upon an unfortunate event such as death can happen to anyone regardless of the size of your estate. As a parent myself, I believe that one of the most important parts of a will is the section that appoints a guardian for anyone with minor children.
An Overview of Guardianship
A guardian of a minor child acts as that child's parent after the death of the biological (or adoptive) parents. But there are two very different types of responsibilities that a guardian can have, and sometimes it's important to name different people for each. The "guardian of the person" functions as the surrogate parent. This person is charged with the day to day physical care of the child and makes important decisions regarding the health, education and overall well-being of the child. They have what is considered physical custody of the child. The "guardian of the estate" can be a different person who is responsible for managing and making decisions regarding the property (money and assets usually) belonging to the child. There are many people who may be wonderful caregivers for a child but aren't the best with managing money or assets. It's in those situations where a person may want to consider separating the powers a guardian has and naming different people to handle the areas in which you feel they are best suited.
It is also a good idea for "the guardian of the estate" to continually consult with a lawyer throughout the guardian process. For example, there are many expenditures which a guardian of the estate may wish to make and use the funds or assets of the child in order to pay for or supplement the cost of those things. But it is always a good idea to consult with an attorney to ensure that the use of the child's assets is an appropriate expenditure. Additionally, annual accounting statements need to be filed with the Court and it is important to make sure those statements are accurate and complete.
Guardianship and Divorce
A common misconception that I have been asked about arises in the situation where parents of a child are divorced or separated and one of the parents is revising his or her will. He or she will usually ask, "can I name a guardian for my child to take custody instead of the other parent?" The answer is usually no. If a parent dies and the other parent is still living, the law will automatically provide the living parent with custody of the child, unless it can be established that the parent is in some way unfit or unable to care for the child. But, it is still important to name a guardian in your will, even if you are a single parent and the other parent is still alive. Why? Because if something were to happen to the other parent, and at the time of your death you were the only surviving parent, then it is important that you have named someone as the guardian because that provision will then take effect.
The Risks of Not Appointing a Guardian
So what happens if you’re the only surviving parent and you don't have a will or you don't name a guardian for your minor child in your will? Upon your death, assuming your child is not yet 18, anyone may petition the court and ask that they be appointed the guardian of the child. They can ask to be either guardian of the person, guardian of the minor's estate, or both. The Court then makes a determination about who should serve as the guardian for the child and in what capacity. Simply filing a petition with the court and asking to be appointed does not automatically mean the court will appoint that person, as that person has to demonstrate to the court that they are able and appropriate to serve as a guardian. However, I'm sure that you don't want the custody and control of your child being decided by a stranger in a proceeding you have no control over, especially when you have the ability to name the person or persons you would like to care for your child. It is also important to consider the preferences of your child when naming a guardian. If the matter were to ever be before the Court, depending on the child's age, he or she may be able to offer some input as to who they would desire to have serve as their guardian. Therefore, it is another thing to consider when naming a guardian.
Bottom line, in nearly every case, it's better for you, as the parent of your child, to make the decision about who should care for him or her once you are gone. You have the ability to do that in your will, so don't leave it to chance or hope that it will all work out when you are gone. See an attorney and make a will naming a guardian for you child.
Aaron Zeamer is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. He received his law degree from Widener School of Law and practices in a variety of areas including Family Law and Estate Planning.