If you have children who are under the age of eighteen, you will want to consider naming a guardian for them in your will. The guardian is the person you want to take responsibility for raising and caring for your children.
If you are married, your spouse will likely become the legal guardian for the children of your marriage. If you are divorced and your former spouse is living, he or she will usually obtain full custody of your mutual children, unless he or she has been found unfit and had parental rights terminated. Even so, your will should name an alternate guardian who will serve if your spouse does not want to act as guardian, or dies at or about the same time as you do.
The person you choose to serve as guardian may also be the person you want to manage whatever assets may be left to your children. By giving the same person control over your children’s physical custody and management responsibility for their property, you can eliminate the possibility of conflict in the decisions made about your children’s education, health and well-being.
On the other hand, if you are concerned about the way an ex-spouse or other guardian might handle the property and money you leave for your children, you may wish to establish a living trust and nominate someone else to manage those assets. In this way, you protect the value of your estate and help ensure that it goes to the children and not into the pocket of your ex-spouse.
Whomever you choose to serve as guardian will be subject to approval by the court. Generally, a person will be qualified to serve as guardian if he or she is a legal adult and has the ability and willingness to care for your children.
Most people choose close friends or family members who already have a relationship with the children to serve as guardians. Some people name the children’s grandparents to serve as guardians. If you are considering doing so, remember that your children will need care for years to come; if the grandparents are already fairly old, they may not want to take on the responsibility of raising their grandchildren during the remaining years of their lives.
If your children are old enough to understand the concept, you may want to consider their wishes as well as naming a guardian. In any case, you’ll want to obtain the advance permission of anyone you want to name as guardian.