Choosing Guardians: Just Do It (and Redo It Later if Necessary)

By Liza Hanks
Liza Hanks

People in this valley are successful, driven, organized and future thinking. So why is it that so many of them don't have the basic documents in place to ensure that their children will be cared for if both parents die before those kids turn eighteen? Here's what I see: It's not a question of having the skills or the energy. It comes down to psychology. Nobody wants to think about dying, and often people don't know who to name as a guardian. So they just don't create a Will or a trust, though they know it needs to be done.

If you have minor children and no estate plan, here are some tips and techniques that you might find helpful in getting started. If you'd like to learn more, my book, The Family's Guide to Wills and Estate Planning, was written just for you.

Parents need to do estate planning so that they can control the most important decisions that will be made after their death.

Here's what I tell my clients. Choosing guardians is tough. But it's too important a decision to leave to a stranger, which is what will happen if you die with nothing in place. A judge, someone who doesn't know your brother, or your sister, or your sister's husband, is going to make that decision, based on your child's best interest. But why on earth would you leave that decision to chance?

Often young parents will tell me that they don't think they have enough assets to make an estate plan. My response to this is to point out that with their home equity, life insurance and retirement plans, many parents will be leaving their children far more assets at death than the parents have available during life. Or, to put it another way, I tell them, "You may be shopping at Target, but your kids may not be." Even a simple Will can put a plan in place to manage assets for children until they are old enough to manage the money themselves. Without any estate plan at all, a judge will appoint a property guardian to manage a child's money, but property guardianship can be restrictive and it terminates at age eighteen. Most eighteen year old children are not going to be able to manage an inheritance well.

Naming guardians for minor children does not need to be complicated. It can be done in a simple Will, signed by both parents in front of two witnesses. It can be part of a more comprehensive estate plan, but it doesn't have to be. Making things more complicated is not a good excuse for failing to do the basics.

Often, the main barrier to planning is not knowing who to name as a guardian. And that stops many parents right in their tracks. Here are some strategies that I suggest when people don't know who to choose or how to choose a guardian.

1. Think short-term. Focus on the next three to five years for now. You can always revisit this when your children are older. For babies, grandparents are often an excellent choice. But as children age, they become more attached to their schools and their friends and it's harder for them to pick up and move across the country.
2. Prioritize. Since no one is going to be exactly like you, focus on the key things that matter to you most. It may be that your children stay close geographically to their extended families; it may be that they are raised in a family of similar faith; it may be that you need them to grow up in a house where there are lots of books, or no books. Whatever you find to be key, allow yourself to let go of other attributes that are getting in the way and realize that no choice is perfect.
3. Listen to your kids. Think about what would make your children feel most safe and secure over the next three to five years. Be creative. There's no requirement that you choose family members if close personal friends are the ones that your children know the best and feel most safe with. Of course, if you don't choose a family member, and there's likely to be hard feelings, you can at least consider discussing this with your family and explaining to them what you are thinking. If that seems too candid, consider writing a letter, to be left with your documents, that explains why you made the choices that you did and ask your family to respect your choices.
4. Spend time with your prospective guardians. I can't tell you how often I get calls from clients with stories that involve spending time with a brother, a sister, or a friend that my clients are thinking about nominating as guardians. And then a chocolate ice cream cone lands face down on a new car's back seat, or a toddler loses it in a store, and suddenly my clients realize that their future guardian doesn't have the patience or fortitude to deal with the actuality of the task at hand. It happens. Better now than later.

Every parent in this valley is pressed for time. Yet anyone who lives here, juggling traffic, logistics, health concerns, soccer, and other forms of emotional child-driven havoc has the skills to get an estate plan done. I tell my clients to think of their estate plan like they do their earthquake kit. It takes some time to put together, but if you need it, there's no substitute for having taken the necessary precautions and putting it together ahead of time. Also, once you've got the bottled water, cat food, emergency contact plan and extra clothes in the closet, you can forget about it for awhile and think of more pleasant things.

If you have minor children and no estate plan, please feel free to contact me at lhanks@fmwlaw.com or call me at (650) 327-0088.