It is difficult for the court to appoint guardians for children whose parents have died without writing a will and naming the guardians. It is really one of the saddest areas of Estate Planning law that I deal with. I have seen families torn apart when the judge names his final determination for guardian. Of course the judge does the best he can, but without a will naming the guardians, he can’t know what the parents really want. The kids are often taken away and their family seldom, if ever, sees them again.
I also have couples come in to do their estate planning and they can’t ever complete the task, because they can’t select guardians for their kids. It is a hard decision. Who wants custody of your children? Who will best raise your children? Where will your children be raised? Will the kids be treasured?

When doing your estate planning, you need to carefully pick the guardians for your kids. It isn’t easier for the judge, than it is for you. You need to act now to make sure your children are protected by naming guardians for them in your will. If you are a grandparent, you need to make sure your kids do their estate planning or at least have wills that name guardians for the grandchildren.
As a grandparent, you need to make sure your kids have wills that name guardians for the grandchildren as part of their estate planning. There was one estate planning case where the grandparents hoped to raise their grandchildren when their parents were in an auto accident and died. There wasn’t a will. No estate planning had been done.The judge appointed a shoestring relative as guardian.
The Court was petitioned by and appointed a distant relative to be guardian. Shortly after the accident, the grandparents had me make out their own living trust. Their estate plan provided that a substantial amount of their assets be left to the orphaned grandchildren. The grandchildren were just removed from the list of beneficiaries in the trust and will, after twenty years, at the grandparents’ request. It has been twenty years and the grandchildren haven’t seen and don’t even know their grandparents.
When you name guardians in your will, the probate court will make the final determination and give that guardian legal custody and legal authority to raise your children. The judge will almost always appoint the selection you have made in your will. It is important before you do your estate planning or make a will to take a moment to think about who and what you really want for your children’s guardian. You can “educate” the probate court in your will about what you want in a guardian, if you understand the whys. You should make two or three different guardian selections in your will. Suppose the first in line doesn’t work for some reason, the next in line will fill the place until one can serve. Every selection the court considers should have restrictions or things for the court to look at. You don’t know how many years from now the guardians will start to serve, so you have to take that time lag into consideration.
For example, you could restrict the grandparents’ service on the condition that they have the health to take care of the grandchildren. When you want to place the children with an aunt or uncle, put the restriction that they are still happily married to their same spouse. If it is important to you that your children be raised in your family home, or in a specific religion, add that restriction. The judge would appreciate any help you give the court. Lawyers seldom put restrictions like these in a will; it isn’t worth their time. Ask your attorney to include these restrictions in your will.
Get in depth information on estate planning including information on naming guardians in Guaranteed Millionaire, my new book. Naming guardians won’t give you a million dollars, but sometimes things are worth more than money.
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