What Is Best for Your Minor Child?
It is very important, if you have a minor child, to have a will. Your will is the usual document that allows you to name a legal guardian for your minor child if you die. If you don't have a document that names a legal guardian, and there is no surviving parent, the probate court will need to conduct a hearing and take testimony from persons interested in serving as legal guardian of the child. When this happens, a person you might not have chosen to raise your child could be appointed guardian by the probate court.
The Surviving Parent
If a minor child has a surviving parent, the surviving parent becomes the legal guardian of the child as a matter of law. If you name someone other than the surviving parent as guardian in your will, the attempted appointment will be disregarded. This doesn't prevent an interested person from petitioning the probate court to have the surviving natural parent declared unfit but, if this happens, it is a separate proceeding that has nothing to do with your will.
Contesting Your Choice of Guardian
Anyone can contest your choice of legal guardian. The duty of the probate court is to determine what is in the best interest of the minor child. When the will is admitted to probate, various hearings might be scheduled. When there is no surviving parent, the probate court will provide your family with a notice of a hearing to determine the legal guardianship of your minor child. If no one objects at the hearing, the person you name in your will is appointed. But if someone objects, she will bring witnesses and any documentation she may have to prove to the court that the person you named as legal guardian is not in the best interest of the minor child.
There is a very strong presumption that the person you name in your will to be the guardian for your child is the person who should be appointed. But the court's primary duty is to ensure the safety and well-being of the minor child. If the person contesting proves that the person you name is not fit, a different guardian will be appointed.
When you have a will naming a guardian for your minor child, it is very unlikely that a different guardian will be appointed. On the other hand, if you did not make a will to name a legal guardian, the probate court judge must listen to all of the evidence and make an independent determination as to what is in the best interest of your child.
Parents typically have strong preferences about who should raise their children if something happens to them. But the only way to make sure the right person serves is to create a will or written declaration naming a guardian.
How Do You Choose a Guardian?
The answer to this question depends on your family values. You may choose a legal guardian who is most financially able to support the child. Or you may feel it is more important to name a person who will provide for your child's emotional support. Typically, the preferred legal guardian is one whose goals, philosophies, and child-rearing values are most similar to those of the natural parents. Ideally, you should discuss these issues with the person you are considering naming.
Sometimes one or more family members expect to be named as legal guardian of your minor child. If you think a family member would be tremendously hurt if he thought you would choose someone else, you need to decide whether to discuss your plans ahead of time with that family member or let the court deal with it after you are gone.
There is no legal obligation for you to discuss your choice of guardian or get the approval of the person you have named in your will. However, after you are gone, the legal guardian named must agree to serve. If the person you name is not willing to accept the appointment, the probate court will seek applications from those who do want to serve as legal guardian. Then the probate court will conduct a hearing to make an independent determination about who should be appointed.
The Child's Property
Unless you create a different legal arrangement, the person who is appointed legal guardian of your minor child will also control your child's property. This means that if your will leaves property to your children, the legal guardian will have control over the funds and property. The legal guardian is supposed to use the property for the benefit of your child, but it is very difficult for a minor child to protect her property.
When you evaluate all of the property your child would receive from you if you and your spouse died, you may decide that you don't want the guardian to have control of it. If this is your decision, you need to create a trust for your child's property, and name someone to serve as trustee.
It is possible to create a trust for your minor child in your will. This is called a testamentary trust. It would contain specific instructions about who should serve as trustee for the benefit of the property of your minor child. The trust would also contain instructions on how your property should be managed and distributed. This trust would come into existence only when you died. If you want to create a trust for your child's property, you should read Chapters 11 through 14.
