One of the most important parts of an estate plan is naming the guardian for minor children that survive both their parents. Couples often struggle with making this decision, and it is by far the part of the estate plan that keeps people from completing their plans more than any other.
Nominating a Guardian
The guardians are nominated in a person’s Will. The nominee can always decline to act (e.g., grandparents nominated to act first may not have health to allow them to serve if and when the time comes), so having successor nominees is also important. Where couples disagree on whom to select, they can nominate different people in their respective Wills. It’s the Will of the second spouse to die that controls. The spouse that believes he or she will outlive the other can agree to the selections of the one that is likely to be first to die – always knowing that if their spouse dies the next day he or she can prepare a new Will naming the guardians that he or she wanted to name from the beginning. Knowing this fact can often “break the deadlock” of couples who cannot agree on whom should act.
Two Kinds of Guardians May be Nominated
There are two kinds of guardians – guardians of the person and guardians of the estate. They can be the same or different people. The guardian of the estate is typically who the couple chooses to act as successor trustee of their revocable living trust(s) – and should be someone who is financially savvy. That type of guardian is usually easy to agree upon. It’s the guardian of the person – where does our minor child live and who will raise that child – that is more difficult to identify.
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