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© 2007 by Eric Holk
Certified Specialist in Estate Planning, Trust & Probate Law
The State Bar of California Board of Legal Specialization

One of the most important functions of a will for those with minor children (those under age 18) is to name a legal guardian (in some states referred to as a "conservator") for those minor children in the event of the deaths of both parents. This can be a difficult decision, and many people with younger children put off making a will simply because they don't know whom to name as guardian.

Providing for the needs of your minor children in the event of your death involves two specific concerns: the physical custody of the children and the management of financial resources for the benefit of the children.

The person who is to have physical custody of the child is referred to as the guardian (or conservator) of the person. The one who is to be in charge of the management of the child’s financial resources is referred to as the guardian (or conservator) of the estate. It may be that the same person(s) will be designated as both the guardian(s) of the person and guardian(s) of the estate, but that is not always the case. Sometimes, it may be wise to have the parenting and physical custody assigned to someone may not be so great at managing money, and to have the money managed by someone who may not be so great with children. Sometimes, parents will establish a trust for their minor child or children, in which case the financial management of the assets held for the child(ren) will be handled by the trustee of that trust, who may or may not be the guardian. Throughout this chapter, we will include sample provisions from trusts for children to illustrate how certain matters may be addressed.

If there is a trust in place for your child(ren), the trustee will have primary responsibility for the management and distribution of the trust assets. The guardian of the estate will be responsible for using the funds received from the trustee for the needs of the child(ren) to pay for their ongoing expenses. If the guardian and trustee are not the same person, they will have to work together cooperatively to make sure that the needs of the child(ren) are properly met. For example, the trust may include language such as this:

The trustee shall, at the trustee's discretion and after consultation with the guardian, pay to the guardian of my child or children any ongoing reasonable expenses relating to or resulting from the care of such child or children. Such payments will be made at least quarterly, and more frequently as the situation requires and the trustee agrees. "Reasonable expenses" shall include but not be limited to food, clothing, child care, transportation, education, medical, dental, vision care, and a pro rata share of the family entertainment and vacation expenses.

Certainly, having assets held in trust for the benefit of younger children makes a lot of sense. Otherwise, any assets held by the guardian for the benefit of the minor child(ren) must be turned over to the child when that child turns 18. Most 18-year-olds lack the wisdom and experience to responsibly manage an inheritance – it is far better to delay the outright distribution to a later age.

When considering who could take custody of your children, there are a number of questions to address:
• Are they willing to serve as guardian of your children?
• Do they have the maturity and stability to parent your children?
• Do they have the time and energy to take on the task of raising your children?
• Is their age or health a consideration?
• Do they know and love (or at least care about) your children?
• Do your children like them?
• Will they love your children and provide the support, comfort and nurture that your children will need?
• Will they make it possible for your children to visit their grandparents or other relatives or close family friends?
• How far away do they live?
• Do they have room for your children, or will they need extra funds to allow them to add on or buy a larger house?
• Will they need to buy a larger vehicle?
• Are their values and financial lifestyle comparable to yours?
• If your children are home-schooled, how will this be handled?
• Will one parent have to quit work in order to take care of your children?
• Do they share your religious beliefs and practices?

The answers to these questions may indicate a need to include specific provisions in your will or trust to address such matters. If the guardians do not have a big enough house or car to accommodate a larger family, you may need to provide funds for this if you expect to have sufficient funds available. Here is a sample clause that may be used in a trust for one’s children:

The trustee may, at the trustee's discretion, advance or reimburse funds to the guardian for any costs directly related to the guardianship of these children, including the need to remodel the guardian’s house or acquire a larger automobile, van or other appropriate transportation. Such contribution to the house remodel or purchase of a vehicle for the guardian shall be deemed a gift to the guardian and the trustee shall not obligate the guardian to repay the trust.

It may be that the persons you name as guardians are less well off than your family. If such is the case, you need to be sensitive to this and consider the financial impact on the guardians of taking on the responsibility of raising your children. For example, suppose the guardians have children of their own, fairly close to the ages of your children, and your children are accustomed to having the latest electronic gadgetry, current fashions, ski trips, etc., whereas the guardians’ children have had to get by without such things. It may be problematic for your children to continue getting such indulgences without also providing funds to allow the guardians’ children to be treated comparably. Disparate financial circumstances will require some thought and discussion in order to work out an arrangement that will minimize difficulties.

A related issue is whether your child(ren) should be given an allowance, and if so, what guidelines should the guardians follow? If your philosophy on this differs from the way in which the guardians choose to treat their own minor children, you need to discuss this ahead of time and come to some agreement on how this should be handled.

If you own a home, you may want to consider the possibility of having the guardians move in to your home to care for your children, especially if this will be less traumatic for the children and if your home is larger than the guardians’ home. It is hard enough for a child to lose both parents without also being forced to move away from the child’s friends and everything familiar. Having the guardians move into your home will be a huge commitment for the guardians, however, and this is something that should be discussed at length before formalizing such an arrangement. If the house is to remain in trust for your child or children, it will be necessary to address in writing who is to be responsible for expenses related to the house. Specifically, will the guardians or will the children’s trustee be responsible for:

• making the monthly mortgage payments?
• paying the utilities (gas, electric, water, phone, cable, trash, sewer)?
• paying the property taxes?
• paying for insurance on the house and contents?
• replacing worn-out major appliances (such as a washer and dryer)?
• maintaining and landscaping the yard?
• paying for any needed repairs and maintenance?

Compensation for the guardians is another important issue to consider. If you are naming a couple as guardians, will one of them have to quit work and stay home with your children in order to properly care for them? Will the guardians’ income be adversely affected in any way? Even though your estate may be sufficient to care for the needs of your children, it may be appropriate to authorize some funds to be used to pay the guardians a reasonable amount to compensate for their lost income while they raise your children. Here is how that might be addressed in a children’s trust:

It is my desire that the care and custody of my minor child or children not create any financial or physical burden on the guardian of the person and the guardian's family. Therefore, the trustee shall also pay to the guardian such amounts as the trustee, in the trustee's discretion, considers necessary to compensate the guardian for lost income due to accepting the responsibilities of being guardian of my child or children, until my child or children shall reach the age of majority. The trustee may also, in the trustee's discretion, make reasonable payments to the guardian for the benefit of the guardian's own minor child or children while guardian has custody of my minor child or children, if necessary to avoid creating disparate treatment of children living in the same household.

When you are considering whom to name as guardian, you should not name anyone without first asking if they are willing to serve and getting their consent. You may be surprised to find that the person you most want as a guardian is not willing to take on that responsibility.

For persons with strong religious convictions, a major issue to consider in naming custodial guardians is whether the people you have in mind are also persons of faith who will continue to bring your children up in the faith. Are their beliefs and practices consistent with your own? Will they be sure to involve your children in teachings or activities related to your faith? Will they set a good example for your children in their daily lives? If the people you are considering as guardians have children of their own, talk to them about their approach to parenting and find out what they are doing to raise their children in their faith tradition.

Other parenting issues are also important to discuss, such as involving the child in extracurricular activities such as sports or scouting, monitoring the child’s television viewing, video game playing, movies, music, internet access, and (for older children) when the child should be allowed to date, whether the child may have others in the house when the guardians are not home, whether the child should have a car (and if so, on what terms and who will pay for the car, the insurance, the gas, and maintenance and repairs), and whether the child should be expected to work part-time.

It may be that you want to leave detailed instructions or general parenting guidance for the guardians you name, and that is certainly appropriate. If you have specific ideas about how you want your children raised, where they should go to school or church, whether they should have music lessons, which relatives they should see and how often, how frequently they should get their teeth cleaned and examined, what they should be taught about managing money, acceptable forms of punishment for disobedience or other infractions, sex education, or any other issues that are important to you, take the time to think these things through and write them down. Share your thoughts with the persons you think you want as guardians and see if there are any significant areas of disagreement.

For many people, the most likely candidates for guardians are close family members such as a child's grandparents (if they are relatively young) or aunts and uncles. While it often makes sense to consider these close family members as guardians because of their relationship and willingness to take the children, it is still critical to ask the hard questions. Are these people the best choice to parent your children? Can they provide a stable home environment? Are they committed to the same faith as you are and will they encourage your children in their spiritual growth? It may be that close friends of the same religion are more capable than your other family members of doing a good job of raising your children the way you would want.

Note that it is not compulsory to name a family member as guardian. Sometimes the best choice for guardian will be someone who is not a family member, and it is your legal right to designate someone outside the family to be the guardian.

What happens if you don't make a will or neglect to designate guardians for your minor children? If one of the natural (or adoptive) parents of the child is still living, that parent will normally have legal physical custody of the child. Unfortunately, in some cases, this can be a very bad thing. If a marriage has ended in divorce because of physical or mental abuse by one spouse toward the other or toward the children, it could be harmful to the child to return custody of that child to the abusive parent. But if nothing has been done to document the abuse, the court may have no choice but to give custody of the child to that surviving parent. If a parent has abandoned his child or been proven unfit as a parent, the court will consider naming someone else as the child's guardian. The fact that you don't like or respect the other parent is not a sufficient basis for denying custody to that parent.

If the child’s other parent has a serious problem such as drug or alcohol abuse, mental illness, a history of child abuse, homelessness by choice, or a criminal record, such facts should be carefully documented with a copy given to your executor, and you should name someone else as guardian even if the other parent survives you. It may also help to prepare a letter to the court stating your reasons for not wanting the other parent to get custody and attach a copy of that letter to your will. Be careful not to make libelous statements about the other person – keep things factual and objective, and make it clear that your concern is for the protection and well-being of your child(ren). Avoid the appearance of being vindictive or punitive, even if your former spouse has caused you great pain.

It may be that the other parent has abdicated any responsibility for the child and would not want custody. If such is the case, you should try to get from that other parent a written and signed statement (preferably notarized) verifying that he or she will not seek custody of the child in the event of your death and that he or she will agree to allow you to designate someone else as guardian. This written statement should be kept with your original will.

In some situations where the custodial parent has remarried, the child or children may be much closer to their stepparent than to the other natural parent, and the desire is for the stepparent to get custody in the event of the spouse's death. In such a case, the custodial parent should name his or her current spouse (the stepparent) as guardian, clearly stating the reasons for doing so in their will or in a separate letter. For example:

"I have nominated my spouse, Ted, to be the guardian of my minor child or children in the event of my death because I strongly believe he would be the best guardian for them even though he is their stepfather and not their natural parent. We have been married for five years and during that time Ted has assumed the role of father to my children, caring for and supporting them, and providing the love and nurture that a natural father would be expected to give to his children. My children love and respect Ted and it would be extremely upsetting to them to be forced to live with someone else. The children hardly know their birth father, Arnold D., and have had no contact with him for the past three years. He has contributed nothing to their support and has shown no interest in the children." [Signed and dated by the custodial parent.]

Likewise, if there is some other family member (such as a parent, grandparent, brother or sister) who might be likely to seek custody but you don't want that person to get custody, you should clearly designate someone else as guardian. If you anticipate that this might lead to a custody fight, you should write a letter to your executor or include a statement in your will explaining your choice of guardian and stating explicitly that you do not want the other person(s) to get custody.

If you have an older child who is already an adult (i.e., over the age of 18) and that older child is willing to be named as guardian, it may be appropriate to designate the older child as guardian of the person of your younger child(ren), especially if the youngest child is already close to the age of majority. This may not be such a good idea if the older child is a full-time college student living away from home. It may be necessary to have an older adult manage the finances for all the children if an adult sibling is designated as guardian of the person.

Guardians may be needed in other situations as well, such as if you have a dependent adult in the family who is physically or mentally handicapped, or if you have been designated as a guardian or conservator for an older adult who is no longer able to properly care for themselves or manage their own finances responsibly. Your will should nominate a successor guardian (or conservator) to replace you in the event of your death.

What happens if both parents die without nominating a guardian for the children? In such cases, the court will appoint whomever they consider to be the most logical person, usually the nearest blood relative. The problem is that this person may be the worst possible choice, even if he or she wants the children. The court will not necessarily ask the kinds of questions you should be asking in order to determine who is the best choice for guardian.

Minor children who have attained the age of 14 normally will have a say in who will be appointed as their guardian, and the court may give priority to the child's preferences if the child's choice of guardian seems suitable to the court. However, the court is obligated to make the appointment "in the best interests of the child" and any interested person or persons can challenge the appointment of someone they consider clearly unsuitable. Therefore, it is wise to decide upon guardians--with input from your children if they are old enough--and put that nomination in writing in your will or a separate "Nomination of Guardians" document.

In naming guardians, it is always wise to name your first choice guardian and then an alternate guardian as well, just in case your first choice is for any reason no longer available or willing or able to serve if the need arises. Also, if you want a married couple to have custody of your child(ren), you can either name both husband and wife as joint guardians, or you can name one without naming the other, if that can be done without giving offense to the one who is not named. In the event they divorce, it will be unambiguous who you intended to be the custodial guardian. This is a matter that must be handled with sensitivity and wisdom.

If you have the time and inclination to write out some instructions for your nominated guardians to guide them in raising your children, that can be very helpful for the guardians, especially if your children get to be rebellious teenagers and challenge the guardians’ authority by saying “my parents never would have done that!” Obviously, there is the temptation to try and micromanage things from beyond the grave, so don’t make the mistake of trying to anticipate and address every conceivable situation. Ideally, one of the reasons you are choosing the guardians you name is that you trust their judgment and have confidence in their ability to use their discretion wisely in dealing with your children.

Because people and circumstances change over the years, it is sound practice to review your will every year or two and reevaluate whether the persons you named as guardians are still the best choice. Family dynamics can change, friendships can change, people can move away or get divorced, your children can change, health issues can become a concern, and any or all of these factors may indicate that a change of your designated guardians or the children’s trustee might be in order. If a change is indicated, be sure to take care of this promptly. When all of your children are adults, you can update your wills to delete the guardian nomination provisions.

Eric Holk, Attorney at Law

© 2007 by Eric Holk










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