Estate PlanningProbate

Your Children and Naming Backup Guardians

Protecting your children should be one of the primary goals of your estate plan. This not only includes money and assets for them but also caretakers. Parents must carefully consider whom they want to be guardians for their children if they were to pass away. If parents fail to name alternate guardians in their will, they lose the ability to have a say when it comes to this important decision. Parents can remedy this by nominating individuals for guardianship in their will.

Probate courts appoint guardians for minor children. Oftentimes, probate courts first look to see if the deceased parents executed wills. If they did, the person nominated as guardian will likely be the person probate court first looks to when it comes to finding a suitable placement. Without this sort of guidance, the court will likely first consider whoever has filed for appointment of guardianship over the minor.

When You Fail to Appoint a Guardian

Naming alternate guardians for your children is a key point of any family estate plan.

Your will provides a roadmap for probate court about whom you want to care for your child. Without this guidance, the court will be left to speculate what is in the best interest of the child. The probate court judge, whom you’ve likely never met, will make a decision that not only affects your children but also generations to come for your family. By dying without a will, you prevent yourself from having a say in the conversation.

What Can Happen

We all have family members and relatives that look good on paper. However, financial success and personal satisfaction do not translate into parenting. These family members may not hold the same values you hold, place the sort of emphasis you want on faith, or simply may cope with private demons below the surface. Because of this, they may not be your first choice as a substitute parent for your children.  However, if they file for guardianship, they may be successful even if you prefer someone else.

Failing to name an alternate guardian for your children takes you out of the equation when making a decision in probate court. This can lead to unwanted outcomes such as decisions made by others who do not know your family and could even result in children’s services making decisions involving where your kids should live.

A will naming a guardian can provide valuable contact information for potential guardians in the event of an emergency. This can allow estate executors contact potential guardians and let them know their status and the steps needed to be appointed by the court. If parties are unable to locate potential guardians, then only those who file will be considered. If nobody is able to file, then agencies and not families may raise your children.

How to Handle Naming Proposed Guardians

Simply naming guardians without any planning or discussion can create additional problems down the road. Because of this, families should take a few steps before finalizing estate plans that name alternate guardians.

  1. Have a Discussion Among Parents

Parents should discuss whom they would want to act as alternate guardians if something happened to both of them. This is true even if the parents are not married. This is because oftentimes custody reverts to the other parent. Likewise, working out wishes ahead of time can prevent family strife and disruption down the road. Conflicting estate plans can create problems for courts to sort out. This may ultimately undo what the goals are of the parents when they sign their documents.

The parents should go over what they feel is important when it comes to naming alternate guardians for their children together. These issues can include potential school districts, financial affairs of the guardian, to the sort of values structure that the parents desire.

  1. Meet With the Proposed Guardian

One of the threshold issues in naming a proposed guardian is determining whether the guardian would accept the appointment of substitute caretaker. A guardian over a minor acts as such until the child turns eighteen or graduates high school, whichever is later. Because of this, a guardian is committing to potentially years of responsibility. It is understandable if they have questions or concerns. This meeting should serve as an opportunity to clarify those issues and ensure that everyone is on the same page.

  1. Execute Your Estate Plan

In Ohio, parents nominate alternate guardians for their children through their wills. Because of this, courts require valid wills in order to consider the parent’s desire when it comes to naming subsequent guardians. By executing your will, you formally state whom you want to care for your children. In addition to a will, families should also consider powers of attorney, living wills, HIPAA forms, and possibly establishing UTMA accounts to cover all their bases for their estate plan.

  1. Make Sure Your Will is Accessible

Probate courts must have wills submitted in order to permit administration of them. Your executor, lawyer, and family members should always know where your most recent will is located. In some counties, you can store wills with the probate court. This can streamline the process and reduce potential challenges down the road. Regardless, having your will accessible lowers the hurdles to ensure that probate court considers your wishes.

  1. Let Your Proposed Guardian Know What to Do

Your proposed legal guardian should know what to do in the event or an emergency. In some cases, the guardian may serve as an emergency temporary custodian of the children if you become incapacitated. If you desire this, additional steps may need to be taken. However, if you happen to pass away, an alternate guardian must know where to go, what to fill out, and how to proceed in the event they need to assume guardianship.

In the event of your passing, a guardian must submit an application forthe probate court to obtain an appointment. When this occurs, probate court conducts a background check and several procedural and administrative steps to ensure the application is approbate. If the proposed guardian is approved, then the court will grant guardianship over the minor.