Won’t someone think of the children?!

Estate planning does not only distribute property on death.  You may also determine who will raise, rear, and care for your minor children.  In many cases, married couples assume that their spouse will take responsibility for the children.  Married couples are also more likely to die together in a common accident than others.  For divorced couples or couples who have minor children from multiple parents, the question may be more complicated.

When you name a guardian in your will, the will must be admitted to probate, which is subject to all the rules and regulations of proving a will in general.  Your will must be original, fulfill the statutory requirements, and be appropriately witnessed.  Once the will is admitted, the Court is tasked with implementing its terms.  Even so, special care in choosing guardians must be had because, ultimately, the court will determine whether the guardianship is in the best interest of the child.  Additionally, the court has an interest in not giving up its jurisdiction so guardianships by out of state and out of country guardians are treated with extra care.

Southern California has seen substantial growth over the last few decades and many Southern Californians do not have much family within the state.  If you are thinking of naming a guardian outside the state, however, you should consider the effect it will have on the children, the court, and your other family.  For example, if the minor child may have a guardian outside the country, it is important to ensure that the child knows the language and will be better off in the foreign country.  It may also be wise to ensure that the child is a dual citizen of the foreign country in order to ease immigration.

When naming a guardian outside of California, it may be wise to consider whether to name a temporary guardian in California until the child can be moved or the court can determine whether the permanent guardianship is appropriate.  Particularly for school-aged children, it may be easier on them if they are able to finish their school year before being transferred, for example.  It may also be advisable to specify that the proposed guardian has authority to petition for the guardianship in their foreign court, rather than being required to petition the California courts.  This authority may be helpful, particularly for guardians in other states, because the court will not be as concerned over losing jurisdiction if the other state has been specifically given jurisdiction.

In blended families it is wise to consider whether children should be split up and to consult the other parent(s) of each child about his or her wishes for guardianship as well.  Leaving the care of minor children to the court can create trauma for the children, particularly when family members fight over who should be able to act as guardian.  Naming guardians for minor children in your will is absolutely essential, even if you do not otherwise believe there is a need for an estate plan!

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10/2013