Choosing a Guardian for Estate Planning
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Choosing a Guardian for Estate Planning
My husband and I are starting the process of setting up a
trust and will. We have two small children, ages 1 and 3. They
will, of course, be the beneficiaries of the trust and we have
asked my brother and his wife, who have children the same
ages, to be guardians if needed.
I understand that funds in the trust can be used for the
children, but I'm wondering if it would be appropriate to make
a one time gift in the trust to my brother to help with
expenses. He lives in an equally expensive part of the country
and it would be difficult to accommodate 2 more children in
their 2 bedroom house.
I'm interested to know if other's have done this and if so,
how did they decide how much was appropriate?
You're absolutely right in saying that the funds in the
trust can be used for the children; that includes the
''expenses'' you want to help with. Every member of this
community probably knows, all too well, that the cost of
raising children isn't limited to the direct and obvious
expenses like clothing and food. There's also the cost
associated with a larger space, higher utility bills, and so
on. The trustee should know that, too, and provide funds
Basically, money from the trust is used like child support
until your kids are old enough to inherit the remainder
outright. It's a good idea to talk to your estate planning
attorney about any specific concerns, though, so that you
can address them in the final document. (For instance, do
you want the trust to contribute towards the purchase of a
larger house if necessary?) This is one of many reasons that
it's always a good idea to create a trust with an attorney,
rather than using software or an online trust mill.
That said, it's probably not a good idea to ''pay'' the
guardian with a one-time gift such as you mention. The
problem of determining the proper amount is only one of
several considerations that tend to argue against this
Finally, on a side note, I'd recommend that you reconsider
naming both your brother and his wife as guardians. If they
were to split up (however unlikely that seems today), would
you want your kids caught in a custody battle between them?
Another question might be whether you'd want either of them
to serve as guardian if they were not married? (For some
people, that's not a concern - for others, it is. Only you
can know what's right for your family.)
If your attorney isn't being helpful with this question, you
may want to take a look at some of the advice and
information that's readily available on this subject for
free. There's an article on my website (www.uniquelaw.com)
about choosing a guardian, for instance, or you could look
lots of other places for sound legal advice.
I'm not a lawyer, but after doing my own estate planning, my
understanding is that the guardians can spend the money on
anything they need for your kids w/ or w/o your specifying
in the will/trust. So for example if they need a bigger
house bc of your kids, they can buy/rent one. If you are
assigning a separate person to be in charge of the money,
then the guardian will have to convince that person, but
otherwise it is up to the guardian.
If you want to encourage them along these lines, I think you
can put in some language about how much you appreciate this
and you don't want it to be a financial burden to them and
you are leaving the money for them to use as they need to
take care of the kids including providing appropriate
housing. Or you can talk to them about it while you are
still alive, but I know that is kind of hard.
best wishes (hope none of us need these docs!)
We are in the midst of trying to choose a guardian for our child--not a fun
conversation, but we are practical, and do not want for our child to not be provided
for in the way that we wish, should the worst happen. Neither of us would consider
any of our siblings nor our parents as guardians, and as such, this is very important
to us that we get it on paper.
We are finding that we are at a loss for how to go about this! We feel that we have
narrowed it down to three choices, who offer very different qualities. I am curious
about how others have gone about choosing someone to parent their child in that
worst case scenario. Did you ask questions (other than ''Is this something you
would consider?'' we don't know what to ask)? Was it sort of an interview? Did you
identify those elements in your lives that you feel could not be compromised
(religion, geography, education, finances, etc.???)?
I am sure that part of the sticking point is that, of course, it is a terrible thing to
imagine, and really, we want it to be US raising our child! But again--we are trying
to be practical, and we want to be prepared should the case arise.
Any thoughts, resources, etc., would be most appreciated.
Although as you point out, this is a somewhat morbid topic of
conversation, it is also a fascinating one, because it brings to
the fore the things you as parents consider most vital to your
child's welfare, which is a conversation that parents
unfortunately under other circumstances often do not have. One
issue for us was that we felt it was important to have our son
grow up with family. ''Family'' can of course be very widely
defined, and anyone loving enough to agree to raise your child is
likely to fit the definition. (Nota bene -- if birth families are
dysfunctional, then look elsewhere.) Having decided that, we
looked at siblings rather than parents for obvious reasons.
First -- had our siblings and their kids shown that they truly
loved our kid and could include him easily? Then values were
taken into consideration -- not necessarily which political party
they supported. How much time do they spend with their kids?
How generous are they in their larger community? What kind of
lifestyle do they have (hyperconsumerism was one problem we
looked at). Geography was far down on the list. Even though my
son has one uncle and aunt living here in the Bay Area with a
couple of kids, it was clear to us that it wouldn't be a good fit
-- the aunt had always been chilly, both parents worked very long
hours with no time for their own kids, buying stuff was their top
priority, etc. One of my sisters is a sweet and wonderful mom,
but she's a conservative fundamentalist Christian whose husband
is big into gun rights -- not a good match for us. Another
sibling is a great Dad but had a difficult divorce and his son
was troubled -- also not a good match, and his economic situation
was shaky. The best match was my younger brother, who raised
three kids with his wife and lives out in the Midwest. Of
course, all this is predicated on the family saying yes. Second
place was my son's Dad's sister, who also lives in the Midwest
with her partner but is childless. They have always been warm to
I think the parameters shift as your child gets older and has
different needs (wants to stay in a geographical area, etc.) But
those were our thoughts.
grateful for family
Kudos to you for considering this very important and yes,
difficult, question. I don't think there is any right way to go
about choosing a guardian, but IMHO, the guardian-to-be is
doing you an immense favor and you can't micromanage how this
person would raise your children without you potentially
offending them. Don't ''interview'' them. But you can make sure
your philosophies are generally similiar. In the end, they will
raise your children differently because they're different
people. As long as they're loving, respectful and supportive of
your children, that's the more important thing.
We picked a close friend and her husband, whom we knew well.
Just asked, ''Is this something you would consider doing?''
In my years as an estate planning attorney, I have found that
choosing a guardian is often the single hardest part of the
process for parents. I often counsel my clients to remember that
they're not choosing someone who will be as good a parent as the
child's own parents - nobody can do that! Rather, they're looking
for someone who will be better than foster care, by as wide a
margin as possible.
Then, I sometimes suggest looking at the Nolo Press website
(www.nolo.com), where you can find a more specific, and very
helpful, article about this process. Good luck!
Definitely discuss the situation with your potentials, and ask
specific questions if there are issues you feel strongly about,
so you can make a decision that you feel good about. But please
realize you can only control so much, and a guardian will
ultimately raise a child using their own values, not a list of rules.
To give you an example, my friends have given me custody of their
children should anything happen to them. However, they decided
to put control of their estate in the hands of a 4 person
committee which includes me and my spouse. So my husband and I
would be the sole guardians but would need approval from at least
one other committee member to use the children's inheritance for
any purpose. This is all spelled out very specifically in their
wills. You may want to create a similar arrangement, but I would
definitely choose ONE particular person to get custody of your
kids. I think if you have special wishes regarding your
children's upbringing, you should discuss it with them, but
trying to create a legally binding document regarding things such
as where they will live is not realistic. What it comes down to
is, you really can't control anything after you are gone. But
you can dictate who will. Choose wisely, and trust them.
-Glad to be a trusted friend
Keep in mind you may change your decision as your child(ren) grow
and as your friend's circumstances change. And it is always good
to have a first, second, and third choice. So you should ask each
of your friends if willing, then order them in the order it makes
most sense now, but revisit it every few years (sucks to think
about it again, but also reassuring to know you don't have to
pick the best guardian forever right now).
For example, when our first choice moved out of the area, we made
her the third choice bc we thought it was important to have our
kids be able to stay in same schools and near other family and
friends if the worst were to happen. When our second choice had a
new baby, they got moved to 3rd choice bc we thought it would be
too much for them to handle. Now that our son is over 18 and it
is only my daughter, we can think about who would be best for
her, not for both of them.
Hi! Good for you for being practical! Yes, we've had this
discussion. Ironically, the friend who kept at me to do it, did
so because she wanted to be sure she'd have them if the situation
arose, but that's not at all who we chose. For us, finances were
not high, because we make a modest income and social security
would make up for what they'd need. First was willingness, of
course. We have three, some may not want that! Next , for me, was
who would raise them as close to the way I would? For me, this
meant, spiritually, open minded, non judgemental, free thinking,
and who would not try to replace me as the mother, but carry on
my place for me. As in, tell them about me alot, keep me alive in
their memory. It's very important to me that they know who I was,
and you'd be surprised how many stories i've heard where that
doesn't happen. Also, how well the couple gets along and
communicates. This would add a great deal of stress, could they
handle it? You are probably aware that the maternal grandmother
will get custody if there is no will, so making this decision is
very important. Let us all hope it never needs to be used!!
We had three different likely candidates who I knew would all be
willing and able. In our case, they were all family. All had
strengths, none were perfect.
One family lived far away, and while very loving, they had a
different parenting style than ours, but at the same time was
someone who I knew would make whatever personal sacrifices were
necessary to give my children what they needed. Another also
lived far away, and was already stretched with their own
children, but had the family values and child rearing style most
similar to us. And a third lived locally, my children already
adored her, but she was single, and I was worried that the
sacrifices required might be too overwhelming for her.
As our children were very young, we made the decision to go with
the family whose style was different, but who we knew would be
the most self-sacrificing. We figured that if they were young,
relocating to the east coast and having to adjust to a different
style was OK as long as they were given overwhelming love and
support. But later, as the kids got older, we switched to the
local family member, because we felt that she was now more
capable to handle them as older children, and because at that
point a required relocation would be much more difficult on the
kids who now had strong ties to friends and community.
So in making your choice, you may want to consider that the best
guardian could change over time as they and your children grow
and change. I don't think anyone's feelings were hurt when we
switched because we could explain that it was based on
geographic reasons, not something personal.
Good luck in making your choice, and may it never matter!
Also a guardian
The lawyer who helped us write our wills (Kathleen Hunt,
recommended in BPN) was very helpful with this issue. She
suggested that we talk with the relatives we were considering.
This was a big eye-opener! We assumed that one sister would be
happy to take the kids, as she is such a loving auntie. She said
no, she would rather handle the finances (something also
suggested by Hunt) and leave kid care to someone else. Another
sibling called us up to say that she did want the kids if
something happened, when we had discounted her originally because
we thought she would want to continue her single life! This
discussion was very reassuring, we realized how many people love
our kids and that they would all do their best should the worst
One of the moms in our playgroup is very needy and emotionally
demanding. She's also been very rude to me in the past, so I try to
keep my distance from her. Strangely enough, last week she called to
ask if our family would watch her child in case she & her husband died
suddenly! She doesn't have many friends and I personally am very wary
of her because of her behaviour in the past so I am stumped about what
to do. Plus her child has developmental issues and has lots of
special needs. We have two small children of our own and there is no
way we could take on her kid as well. What can I say to her that won't
piss her off further? We love our playgroup otherwise but this is
makine me want to quit it.
Wow..that's a whopper of a favor! I've been struggling with deciding whom
I want to
raise my kid if something happens to me or her dad for six years! But I
First of all, I would presume that she is not asking you to take on the
responsibility of her child. *Most* people who go to the trouble of
guardians to their children in the event of their deaths, have probably
necessary financial arrangements as well (ie life insurance for the
parents?). I would
think if she is seriously considering you to be her child's guardian,
you'd have every
right to ask about this.
But it doesn't sound at all like you would consider this anyway. Frankly,
I think you
should be able to say that while you are flattered that you would be
this responsibility, you feel it's too much to take on, having two kids
of your own.
You could even go so far to say ''don't you think you would want your
child to be
raised by someone with like minds, a family member, etc.?'' or just ask
her why did
she choose you?
At any rate, if she get's upset or mad about your turning her down, she's
not really a
friend to be troubled over, and if the rest of your mom's group gives you
time about it, they aren't worth it either. This is a HUGE decision and
I'm not sure she's not just testing you anyway.
Haven't found my guardian yet
We are struggling with the decision of who should take over
care of our children in the unlikely event that we die when
they are young. How do other people go about this painful
choice? We are fortunate to have my sister and her family
nearby. We are close and get along fairly well, but there
is alot of conflict (sometimes explosive) in their house
and a parenting style we find too permissive and hands-off.
I cherish this family but I cant see them raising our children
(and my wife feels even more strongly than I on this). My
sibling would be hurt to know we are not choosing them and
they have chosen us for the same. Talking about our
hesitations would not be fruitful- when parenting concerns
are raised it just causes tension between us.
My parents are elderly. We have friends whose
parenting we like and whose home feels loving, but
they speak another language at home and live in another
part of the Bay area... There seem to be
no ideal choices. So we never put anything into writing (like
a will) which we know is negligent! We also dont want to
choose someone out of the local area (like my wife's family-
who live out of the country), because it would be too hard for
my children to lose their parents AND have to move away
from their whole community (school, friends, temple, etc).
In addition, they are not as familiar with family members
who live far away. I am glad for any guidance.
In my opinion, you should definitely choose the friends whose parenting style
you like over relatives where there is a lot of conflict in the home. I've
this choice myself, although it was easier because my family members live far
away and my friends are right here. A loving household beats out the foreign
language problem or the distance from your kids' East Bay home.
The odds that your kids will have to be raised by someone else are very slim,
as you know, but if it makes you feel better about the choice, include a
with your will explaining your decision to your relatives in as loving a way
you can (e.g. emphasizing your philosophical closeness to their child-rearing
style, rather than family criticisms which you won't be able to temper in
For the time being, unless your relatives force the issue in conversation with
you, I wouldn't even bring it up. But if you have to discuss it, be honest,
because this is the time that they *can* hear your opinions in your own voice
with whatever softening you might be able to manage on their behalf.
Be sure to discuss this thoroughly with your friends, so that they will make a
point of keeping your kids in contact with family, visiting their old East Bay
Good luck --
choosing a guardian is extremely hard. there is no perfect
parent for your children except you. it would be highly
unlikely for your children to lose both of their parents, but it
is important to choose someone before it is too late and someone
else has to make the choice. you might need to pick the
guardian that would be right for now and then change later on.
your will is always amendable. perhaps you need to get your
concerns about the way you want your children raised written
down so that if a guardian is needed, s/he will have some
guidelines. for example, if the guardian you choose is out of
the area, you can ask that they temporarily stay here so that
the kids can have a longer transition time before moving and
that they bring the kids back to visit... nobody can replace
you, so just remember that you are not picking a replacement.
My husband and I run a consulting law firm that specializes in
estate planning so we see this issue quite often. Here is what
we tell our clients. No one will raise your kids as well as
you. Deal with that reality. What you want is the best among
your choices. And the choices may not be ideal, but they are
better than no choice. It's better for you to choose than to
allow family members to fight it out or have the court appoint
someone. Also, you don't have to tell anyone who you named as
guardian (but of course tell the guardian). Keep in mind, you
can always change your plan. Name the best person now, and in 5
years, you may have met a couple with similar nurturing skills
or your relatives may have matured into better parents. Your
choice is not permanent. Every decision we make today can only
be based on the best of our knowledge today. If tomorrow
changes, then you can change your plan.
One other point, we recommend living trusts for most of our
clients. We encourage our clients to leave their children's
inheritance in trust to provide them with better protection.
You can name a trustee of the children's trust to manage the
finances and assets and name someone else as guardian. The
guardian doesn't have to be great at financial management and
raising children. Choose the latter and get someone else if
need be for the former.
Congratulate yourselves on at least deciding to establish your
I empathize! Not sure I can give sure-fire advice, but just
today my husband and I met with a lawyer to discuss this very
thing. In our situation, both sets of our parents are probably
too old, my family all lives far away (east coast and out of the
country) and I had some real discomfort with either of my
husbands' siblings being named guardians due to religious and
social/political beliefs that are extremely discordant with ours.
I think the easiest part of a guardianship decision is that
unless you and your parents had children quite young, your own
parents' are not an ideal choice. Our criteria for choosing a
guardian included someone who could raise our child in a way
that is as similar to our own hopes for family life as possible -
and that's not realistic for grandparents in their 70s.
I also think following your heart or your gut on whose house
just ''doesn't feel right'' is key - and I come from a childhood
home where explosive anger was pretty regular, it is something I
would want to shelter a child from as much as possible. Will
your sister feel hurt? Maybe, but I imagine that should the
unthinkable happen - everyone who cares about you would rise to
the occasion and respect your wishes.
In your case it sounds like keeping kids in familiar
surroundings is important, so friends other other relatives
nearby is probably the best option. I understand your concern
about kids moving to a household where another language is
spoken, but if it is a loving household where they would be
welcomed and cared for...a slightly unorthodox situation is
surely preferable to one where they have to fit into a difficult
So what to do? In our case, we named my sister who currently
lives out of the country. The idea is that if she decides to
stay abroad we will name someone else, but since she plans to
come back she is currently our top choice. She will surely
settle on the east coast, so that's a compromise, but we felt
like she would be the best person to raise our daughter in a way
most like what we want to be able to do ourselves.
In any case, make sure you name somebody, I've been advised that
if there is no specified guardian in can get tough on everyone
when the court gets involved. Good Luck!
We ended up choosing my husband's sister's family as our
children's guardian even though they live in So. Cal. This is
only in the event that my mom can't do it. We simply couldnt'
stomach choosing my sister and her family who live here and to
whom my girls are close, because their parenting style is so
different from ours. It was easy to choose, yet hard. But we
have never told my sister that we didn't pick her. I don't think
there is a need. If for some reason she asked, I wouldn't lie,
but I doubt she'll ask. One suggestion; write a letter to her
explaining why to be given to her upon your death. This was
suggested to us, and I haven't done it yet, but would like to. It
would be written kindly of course! We also specifically excluded
my father, who is still married to my mother, from a bunch of
things because of who he is. Again, a letter will be written
I think the most important thing is for your children to be with
someone whose parenting style/philosophy resembles yours. Kids
are pretty resilient, and while it would be hard for them to move
away on top of loosing you, ultimately, it would be best. Good
We have also struggled with this issue, and are not completely
sure (I have the Nolo trust book and plan on using it soon!).
However, I really tried to focus on figuring out where my kids
would be happiest and where they would feel most at home in the
awful event that they lose both me and my husband. I have
concluded that that is with my sister even though she and I have
a lot of disagreements about some pretty big things! I just
thought that even though you may not agree with your sister's
parenting style, and way of resolving conflict, you kids might be
ok with that stuff (I'm assuming that her relationship is
basically solid, if you feel that it's shaky, that's a
different story.) In other words, it might be the best option
b/c a sister is a close family member, thus this might be the
least traumatic move for your kids. Just my 2 cents.
It is difficult choosing a guardian often because few of us have
friends or family who would raise our child(ren) the same way we
would. I had my son as a single mother and I was highly
conscious from the first that I must pick someone in case
something happened to me. I ended up choosing my brother and
sister-in-law because, although they live a very different life
than me, upper middle class suburban, relatively conservative,
etc., I know they would be warm and loving parents to my son.
And in the end, this is what counts.
Of course there are no ideal choices: YOU are the ideal parents
for your children, and of course no one else seems as good.
Nonetheless, this is not an excuse to procrastinate or not make
out your will. Remember: IF YOU DON'T DECIDE NOW, SOMEONE ELSE
COULD DECIDE FOR YOU LATER.
Ask yourselves, Who are the second best parents after us? And who
will give my child(ren) the most contact with my extended family?
Those are the long-term issues for your child's future.
Don't worry about things like where they live--that's trivial, and
changeable. Do worry about things like, Will [my choice] ensure
that my child continues to have a relationship with the rest of
The second thing you have to do is make sure your choice is
then you have to make the will. I suggest picking up Nolo Press's
Will Book for a basic, legal will that will probably suit your
needs for some years. It's also very easy to modify if you change
your minds, add children, etc. Don't delay! Do it now!
Mom who knows that even ''unlikely'' events can happen
We just saw an attny last week to settle the exact issue and to
write a will. He suggested that little kids are very flexible
and simply need to be with a family who will love them and care
for them - and will share your values in upbringing of course.
He believes that the location is not material at such a young
age and that even moving them across the country would not be
bad if they will have a caring family to help them. I had been
taking the view that location is important - all the changes in
schools, friends including the loss of parents and home seemed
excessive to me if it could be avoided. We too will not use
family members but we don't have anyone whose feelings would be
hurt so I can't help on that matter.
Good for you for taking care of what I think is a very important
part of a child's life. My husband and I were adamant that are
two young children not go to biologic family. We picked out
someone, although unrelated, who was the very best match for our
children; that person is serving as the guardian (esssentially,
parent) if something were to happen to my husband and me,
simultaneously. In choosing this person we considered not only
her giftedness and lovingness with our children but also that the
choice of this particular guardian would allow our children to
stay in their home, attend the same schools, keep their dog, etc.
I recognize that not everyone has this luxury. We also
designated a trustee for our estate who would have been a great
guardian for our children as well, but who would have necessated
a geographical move for our children, which we did not want. Our
designated trustee is very saavy fiscally (an accountant and MBA)
and can be trusted to meet the needs of our guardian, children,
and dog. Our guardian, while also very fiscally responsible and
saavy, isn't burdened with investment and disbursement issues and
can attend exclusively to the role of parenting our children
should something happen. Even though no biologic family, on
either side of our families, would try to take custody of our
children, it was still important that we spell out very
specifically our reasons for choosing non-relatives. We didn't
want any legal entanglements at a point when our children were
trying to heal. There is a fairly large estate that falls to our
children so it was essential that we had competent legal help as
well as a competent trustee re: financial decisions and
disbursements. A lot of the financial decisions we have
designated, specified, and prioritized. Our guardian is also
happy to make sure that our children's religious training
continues; something you might want to reach agreement on. We
have also made a videotape for the children should something
happen, not to be morbid but to be supportive. We used the
services of Richard Hill, an excellent and reasonably-priced
Berkeley attorney, who only deals with trusts and estate law. It
is ideal, I believe, to use the services of so
Sleeps better at night
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