By Kitty J. Lin
One of the most important things you should take into consideration is naming a guardian of your minor children in your will. This will ensure that your children are taken care of if anything happens to you in the future. Without anything to memorialize your wishes it will be left to the courts to decide what is best for your children. What the courts believe is the best for your children may not be what you personally want for your children.
When discussing your circumstances with your estate planning attorney be sure to discuss the two types of guardians for your children: guardian of the person and guardian of the estate. Guardian of the person will take care of minor children in the daily life of the children including seeing to the children’s needs such as food, living arrangements, clothing, education and other matters. Guardian of the estate will take care of the financial matters for the minor children until they are no longer minors (normally 18 years of age). This includes making financial decisions for the minor children such as opening/maintaining bank accounts and other financial accounts, taking care or managing the minor’s assets such as real property, sue or defend claims against the minor’s assets, and enter into contracts to buy or sell assets on the minor’s behalf. You may nominate the same person to be the guardian of the person as well as guardian of the estate or you may nominate different people to be one of each. You may know someone that would be the perfect guardian of the person for your minor children: this person may be loving and caring and provide a loving atmosphere for your children to grow up in but this person may not be financially responsible. If this is the case you can nominate this person to be the guardian of the person for your children and nominate someone else that is financially and business savvy to be the guardian of the estate for your minor children. It is a decision that you will need to think carefully about as it may have a deep impact on your minor children’s life.
What happens if you nominate guardians for your minor children in your will but you are separated from the other biological parent either due to divorce or legal separation or you were never married to the other biological parent in the first place? What are your rights at that time? Will the court abide by your wishes in your will or will the court give the guardianship to the other biological parent despite your wishes? The answer is “it depends.” For the most part, courts will award the other biological parent the guardianship of your minor children regardless of what your wishes are since courts believe the biological parents have more rights to the minor children than anyone else. Pursuant to Family Code 3010 (a) both parents are equally entitled to custody of the children and 3010(b) indicates that if one parent is dead or unable or refuses to take custody or has abandoned the children, the other parent is entitled to custody of the children.
However, it is still best to list who you want as your guardians for your children in the will when estate planning. If anything happens to you in the future, your will is probated. The judge will at that time decide on who the guardian of your minor children will be. If there is any evidence the other biological parent is an unfit parent, is abusive, has abandoned the children, or any other reason why the court should not award the other biological parent guardianship of your minor children, be sure to keep evidence of such incidences so the judge can make an informed decision in the best interest of your children. In determining the best interest of your children judges look to Family Code 3011. Factors include the health, safety, welfare of the children, history of abuse, nature and amount of contact with both parents, and any habitual or continual use of illegal controlled substances. Absent such evidence the judge will most likely award guardianship to the other biological parent despite your wishes. One way to avoid any conflict if you are divorced is if both you and your ex-spouse agree as to who the guardians will be and express it in writing in your marital settlement agreement or divorce decree. Whatever the circumstances are, it is best to memorialize your wishes on paper so that at least your wishes are known.