When you’re expecting a baby, the last thing you want to do is imagine a world they might have to navigate without you or your partner in it. But even though the possibility of you and your partner dying or otherwise becoming unable to care for your child is small, it’s important to consider the possibility, and come up with a guardianship plan in your last will and testament.
The guardianship plan will likely never need to be put into place, but it’s essential to talk it out and draw up estate planning documents, rather than just assuming that, were the worst to happen, your parents or in-laws would take charge of child rearing.
You want to make sure your child is protected under all circumstances.
“Planning to protect young children in the event that both parents pass away is a huge responsibility,” says Shannon McNulty, a lawyer in Manhattan who owns City Family Legal Planning, a firm specializing in drawing up legal documents for families.
“You want to make sure your child is protected under all circumstances.” And although playing the what would happen if game can be grisly, asking some hypothetical questions can assure that your child will be in the best possible hands if the worst were to occur.
1. What do I want my child's life to look like?
This is also something you can discuss with the guardian you eventually appoint. Maybe it’s important to you that the guardian make every effort to relocate to your state, at least temporarily.
2. Who would want to be my child's guardian?
Of course, if something happened to you or your partner, a lot of loved ones would likely step up to the plate. 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 the guardianship possibility to two of her siblings, and was surprised by how much her child-free brother expressed support.
“I have two siblings, and I assumed, were the worst to happen, my children would go to my sister, who already has three kids of her own. And while she agreed, when I brought that up to my brother, who doesn’t have kids, he talked about why he would like to be added as well: He works remotely, always wanted kids, but the cards never lined up in his life, and had the flexibility to adapt to the needs of my child. That, plus the fact my kids love their uncle, tipped the balance for me.”
3. What is my financial plan for my child?
Knowing what your child would inherit were something to happen is important. Making sure to read and understand any insurance policies you have in place that provide coverage for your life can help you understand your child’s financial future.
It’s also helpful to discuss how assets would be distributed to your child and their guardians: a lawyer will walk you through different options, including creating a trust 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 (although they often can be the same). While a financial guardian doesn’t necessarily need to have a background in finance or law, for some families, it makes sense to choose a financial guardian who they feel has the most depth of knowledge in this area and would make the wisest financial decisions for their children.
Again, it’s smart to make everyone aware of this choice before you have your will drawn up.
“Our entire extended family is close, and when we thought about what was best for our children, 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, since 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.”
4. Does my guardianship appointee still make sense?
Your guardianship appointee is not set in stone, and it’s important to update your will 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, while other family members may have started families of their own that could be a better fit for your child. It’s all about remaining flexible and adaptable.
5. Who could drop everything and watch my child immediately?
While you name a guardian in your will, McNulty says that to fully have your bases covered, it’s important to also make sure you have a standby guardian designation—someone who would immediately take custody of your children while the court is appointing a guardian.
“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, knew she wanted her sister named as guardian, but her sister lives abroad—which would make it hard for her to assume immediate responsibility. Because of that, Eleanor designated her own mother as a temporary guardian, making sure all parties were on the same page in that decision.
Bottom line: It’s important to let your guardians to-be know their designation—and equally important to let the loved ones who you didn’t name in on your decision.
It's important to let your guardians to-be know their designation—and equally important to let the loved ones who you didn't name in on your decision.
Let’s say you prefer your child be raised by your sibling, because you like the way they parent, but you know your mother-in-law would expect that designation. Having a conversation touching on why you chose your sibling, and how she would still be involved in your child’s life, is important. While these conversations may not be pleasant, the peace of mind they provide is priceless.
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Anna Davies is a writer specializing in personal finance who's written for Refinery29, Cosmo, Elle, Glamour, the New York Post, Conde Nast Traveler and others. When she's not working, she loves going on adventures and traveling with her 2-year-old daughter.
This material is designed to provide general information on the subjects covered. It is not, however, intended to provide any specific legal advice or to serve as the basis for any decisions.
We are not a law firm, are not licensed to practice law in any jurisdiction and do not 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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