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When you’re expecting a baby, you don't want to imagine a world for them without you. But you'll be glad you considered who should take care of your child if you weren't around. A key way to account for this possibility? Come up with a guardianship plan in your last will and testament.
Your survivors likely won't need to be put your plan into place, but it’s essential to talk it out. Don't just assume that, say, your parents or in-laws would save the day.
“Planning to protect young children in the event that both parents pass away is a huge responsibility,” says Shannon McNulty, a lawyer in Manhattan. She owns City Family Legal Planning, a firm specializing in drawing up legal documents for families.
Deciding exactly who to choose can be difficult, since your decision could have big ramifications for your children. (Interestingly, according to our original research, 62 percent of parents with young kids designated a woman as their children's guardians.)
After you decide, then comes the fun part (“fun” may or may not be sarcastic). It's time to ask the person you’ve chosen. And, in some cases, you might need to tell the people you didn’t choose.
McNulty says, “You want to make sure your child is protected under all circumstances.” Playing the what would happen if game can be grisly, true. But ask some hypothetical questions to ensure your child will be in the best possible hands if the worst were to occur.
This is also something you can discuss with the legal guardian you eventually appoint. Maybe it’s important to you that the guardian relocate to your state, at least temporarily.
You might also want to think about choosing a guardian who'll maintain impart the values you care about. You can gather the traditions, morals and lessons you hold dear by creating an ethical will.
A lot of loved ones would probably step up to the plate, if worst came to worst. But talking about the possibility can help you suss out who would thrive on the challenge.
For example, Jen, a mom of two from Montclair, NJ, spoke about guardianship with two of her siblings. She was surprised by how much her child-free brother was interested. “I assumed, were the worst to happen, my children would go to my sister. That's because she already has three kids of her own," Jen says.
Her sister agreed to take on the responsibility, but her brother was excited about it. "When I brought it up, my brother talked about why he was interested as well. He works remotely and always wanted kids, but the cards never lined up. He has the flexibility to adapt to the needs of my child. That, plus the fact my kids love their uncle, tipped the balance for me.”
Understand your children's financial future by reading and understanding any life insurance policies you have in place.
You'll also probably want to discuss how assets would be distributed to your children and their guardians. A lawyer can walk you through different options, including creating a trust fund or creating a guardianship.
Finally, it’s important to realize that a legal guardian doesn’t necessarily need to be the same person as a financial guardian. (Note that they often are the same, however.)
That depends on how much money we’re talking about, says Syble Solomon, financial educator, president of LifeWise Strategies and founder of Money Habitudes. “When you have very little money involved and the guardian will actually be providing for the child, having that monitored by someone else doesn’t make a lot of sense.”
Those with larger estates, though, may benefit from appointing a separate trustee. Many estate attorneys recommend setting up a trust to protect assets like life insurance in the event of your death. Parke Burmeister, attorney and founder of Casco Bay Law, LLC, says you might sometimes want a separate trustee to manage these assets: “Let the guardian focus on raising the kids, and let the trustee focus on taking care of the money.”
Inform all relevant parties about this choice before you write your last will and testament, to make sure they're on board.
“Our entire extended family is close, so we had a lot of options,” notes Kristy, a mom of three in Needham, MA. “Ultimately, we decided that my children’s legal guardians would be my sister and her husband. They have children close in age to my own kids. But my husband’s brother is a lawyer and I know he would have the most talent—and interest—in managing the financial side of things.”
It’s important to update your guardian appointment as situations change.
For example, let’s say you named your child’s grandparents back when your child was a newborn. But flash forward a decade, your parents may be less active and facing health problems. Meanwhile, other family members may have started families of their own that could be a better fit. It’s all about remaining flexible and adaptable.
While you name a guardian in your will, McNulty says it’s important to make sure you have a standby guardian designation. That's someone who could immediately take custody if your main guardian isn't immediately available. She says, “Having a standby guardian designation, like a trusted friend or family member, ensures that your child will never end up in state custody.”
Eleanor, a mom of two in Boulder, CO, named her sister as legal guardian, but her sister lives abroad. That would make it hard for her to assume immediate responsibility. Because of that, Eleanor designated her mother as a temporary guardian, making sure all parties were on the same page in that decision.
There’s really no wrong way to ask someone to serve as a guardian. Most people will be flattered. What bigger compliment could you give someone than entrusting him or her with your child’s future?
Here are some steps for having a seamless conversation:
Make sure the person you designate as legal guardian is up for the job. “If you’re worried about putting a big guilt trip on them, you can start the conversation by giving them total permission to say no,” says Brad Klontz, associate professor of Practice Heider College of Business at Creighton University.
Lay out any special wishes. For instance, some parents find peace of mind if they know their children will stay in the family home after they die, according to Burmeister. If that's important to you, make sure the guardian would be willing to accommodate.
Talk about the values and traditions you hope to impart on your children. One way to categorize your guiding principles is to make an ethical will.
Talk about money. How will your potential guardian support your child? Do you have an emergency fund? What about saving for college? Let the potential guardian know what you’ve put in place. Knowing you have adequate term life insurance, for instance, can help ease the guardian’s worries about the strain of being suddenly charged with raising a child.
When you ask someone to be your child’s legal guardian, they will often say yes right away. But if this person has a spouse or partner, Klontz recommends making sure they talk it over with that person before you finalize anything.
If you choose one person as a legal guardian and a different person to be the guardian of your child’s finances, you may feel uncomfortable telling the guardian that you trust them to raise your kids, but that you’ve chosen someone else to manage the money. Likewise, it can be awkward to tell someone you trust them with your money, but not your kids.
Klontz has a simple suggestion: “The details don’t really matter as much as the framing does. Say, ‘We have these two roles to fill, and it was a really tough decision. We really want you in our children’s lives, so we chose this role for you.’”
You can take the same approach when appointing an alternate guardian. Initiate the conversation by explaining what an emotional process this has been. Let the backup guardian know how much you want them involved in your child’s life, too.
While many people prefer for family to raise their kids, it’s not always possible, or even preferable. If you’ve decided to have a friend serve as your child’s legal guardian, you might dread breaking the news to your family.
“Admit that this is a difficult conversation for you,” says Solomon. “Then, share what you’ve put in place so your family will participate in your children’s lives.”
When letting parents or older relatives know, Klontz recommends phrasing like: “We know you’d provide an incredible home for our children, but we didn’t want to burden you.”
As Burmeister points out, if you have a toddler now and your 50- or 60-something parents are healthy, they might not be up for the challenge of raising a teenager when they're in their mid-60s or -70s.
You also don’t need to announce your decision to your family, either. This is especially true if you chose a non-relative because you have a difficult relationship with your family. “You have no moral obligation to tell everyone,” says Klontz. However, he does recommend informing at least one person from each spouse’s family. By doing so, you can help avoid hurt feelings and confusion in the unlikely event that the worst happens.
At the end of the day, the most important thing is to ensure your child has a safe, loving home.
After you complete this intense process, it may be tempting to hope your last will and testament collects dust in a filing cabinet. But don’t forget to revisit your decision every few years as life circumstances change.
Solomon says, “You may choose one guardian for a young child. You might choose another for a teenager who wants to remain local to finish high school.”
Once you’ve completed this unsavory task, you can add it to the list of things your kids will probably never thank you for. But rest assured they'll be immensely better off because you got it done.
At the end of the day, the most important thing is to ensure your child has a safe, loving home.
Fabric exists to help young families master their money. Our articles abide by strict editorial standards.
This article is meant to provide general information and not to provide any specific legal advice or to serve as the basis for any decisions.
Fabric isn’t a law firm and we aren’t licensed to practice law or to provide any legal advice. If you do need legal advice for your specific situation, you should consult with a licensed attorney and/or tax professional.
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