Ask the Expert

Estate Planning Attorney Martha Hartney filled us in on eight considerations when naming guardians for your kids.

Nearly 70 percent of American families have no legal plan in place. Many people don’t know how to proceed or are overwhelmed with choices. Some people try to DIY their estate plan, only to discover they’ve wasted time making big mistakes. The better choice is to find a trusted attorney to create a proper plan that protects your family and your wealth.

Step one for any family with children under 18 is to name guardians for children. These are eight key things to consider when naming guardians for your kids.

  1. Make sure you have an emergency response plan in place for your minor children. What would happen to them in the immediate hours after tragedy has struck until your guardians can arrive? Keep your kids out of protective custody and foster care with a thorough emergency plan.
  2. Name more than one potential guardian. What happens if something happens to your first choice? Choose three alternates in an order of priority and document them in writing.
  3. If you name a couple to act as guardians, make sure you decide what should happen if the couple breaks up or if one dies or is incapacitated. Document this choice properly to ensure the well-being and care of your children.
  4. Name guardians in a separate, freestanding document, not inside your Will. A Will is not effective until you’re dead. If your guardianship nomination is in your Will and you’re incapacitated, your children could be left without a guardian—and stuck in a judicial proceeding as a result.
  5. Exclude anyone who you would not want to care for your children and document your decision in writing.
  6. Avoid taking financial resources into consideration when deciding who will raise your children. It is the parents’ job to provide enough resources for the guardian to raise our children for us, not the guardian’s job to fund that endeavor.
  7. Create an estate plan. Consider creating a Revocable Living Trust to prevent a court from taking control over you, your money and your children.  A living trust is the only way to avoid probate and keep your family’s financial management within the family. It’s also the best way to protect assets from your family’s future divorces and creditors.
  8. Don’t just pass on your financial wealth—pass on your real wealth—which is who you are and the impact you’ve had on the world. Make sure to create a record of your impact on your family and community. The best estate plans not only make sure your family is cared for properly, they makes sure your loved ones know where they came from.

Legal planning for families is a critical step in living a full life. Each of us knows we’re not promised tomorrow. When we take care of our family, we can let it go and live our best possible life. Find an attorney you like and get it done.