Monday, March 9, 2009

Choosing a Guardian for Your Minor Children

Who will care for your children if you should die before their 18th birthday?

A difficult thought, to be sure. It may help to know that you can provide for your children's well-being should such a disaster occur. You can name the person who will be your children's Guardian if you are no longer here, and ensure that they are cared for and receive all the benefits of your estate.

Q: Who needs to choose a Guardian?

A: All parents of children under the age of 18 need to specify a Guardian. California law requires that everyone under the age of 18 be represented by a legal Guardian. Only minor children who are married are excepted from this rule.

Q: What does a Guardian do?

A: A Guardian or Guardians are responsible for:

1) Your children's person

2) Your children's estate

The Guardian of your children's person has responsibility for the care, custody, control, and education of your minor children.

The Guardian of your children's estate is responsible for the management and control of the minor's property. You can nominate one person to be Guardian of person and estate, or choose two different people. This allows you to choose the person who is best able to raise your child, even if they are not the best person to manage the inheritance.

Q: What happens if I don't nominate a Guardian for my child?

A: If you do not nominate a Guardian, and you predecease your minor children, the Probate Court will choose a Guardian for you. The Court appoints a Guardian based on a formula that is defined by State Law. No consideration is given to your wishes unless they are legally specified in writing.

Q: How do I Nominate a Guardian for my child?

A: You can nominate a Guardian in your last will and testament. It is important that your will be coordinated with your other estate planning documents such as a Living Trust, life insurance, retirement plans annuities, etc.

Here are some important steps you should consider when planning for your children's Guardianship:

1. Communicate with your spouse.

This may seem obvious at first, but it can take longer than you expect to arrive at a mutually agreeable decision. It's easier to decide how to distribute your estate than it is to select a Guardian. Take as much time as you need to discuss this decision openly with your spouse so that you are happy with your choice.

2. Communicate with the Intended Guardian.

You may be astounded to find that some nominated Guardians have no idea that they had been chosen until the parents are deceased. This is far too critical a decision to spring on someone at the last minute. After you have decided on a candidate, discuss it with him or her as early as possible.

3. Ensure that your child's Estate is Adequately Funded.

Asking another person, even a family member, to raise your children in your absence is a serious emotional and financial decision. Ensure that you have a living trust, life insurance policy, or other financial arrangement in place. Communicate the financial situation clearly to the potential Guardian, and ensure that they are willing and able to handle the commitment.

4. Ensure that the Guardian of the child's person is able to work closely with the Guardian of their Estate.

It is entirely appropriate to choose one person as the Guardian of Your Child, and another person as Trustee or Guardian of their Estate.

However, make sure that these people are dedicated to working together for your child's benefit.

If there is a family conflict, or some other reason they would not be able to work together, you should consider using a professional (such as a bank trust department or other Professional Fiduciary) to manage the Estate.

5. Seek professional legal help immediately!

Recent studies show that up to 66% of Americans die without a valid will or trust. As a result, the vast majority of Guardianship proceedings take place without any input from the deceased parents. Procrastination is your greatest enemy. Everyone thinks they will live well into their children's adulthood. However, statistics show that this is not always true.

Your children's well-being is too important to leave to chance.

John Erik Fraker, Esq., is an estate planning attorney and managing partner of Ainer & Fraker, L.L.P., a Silicon Valley-based law firm specializing in estate planning, small business law and tax. The firm's web site is at

Disclaimer: The information contained in this newsletter is not intended as a source of legal advice. You should not act upon or rely on information in this or any other newsletter without the advice of competent counsel, especially if you reside outside the State of California, where our firm is not licensed to practice law and does not give advice. This newsletter does not establish an attorney-client relationship.

Copyright (c) 2006 Ainer & Fraker, L.L.P.

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