Plan for Your Children: Naming a Guardian

In developing a solid estate plan, nothing is more important than choosing the person to raise your children in the event both parents are deceased. Designating a guardian should be one of the first steps in any estate planning process.

In national news, the 2012 death of former Beastie Boys member Adam Yauch publicized a dilemma regarding who should be the legal guardian of his daughter. His will, which is a public document, suggests that he and his wife did not agree on who would raise their daughter if they both died. The will describes an unusual compromise: If Yauch died in an even-numbered year, his parents would become his daughter’s guardian and his wife’s parents would be backup guardians. If he died in an odd-numbered year, the guardianship roles would be reversed. While this is certainly an unusual agreement, the fact that it was clearly stated in the will ensures that Yauch’s daughter has legal guardians no matter what.

Without a will naming a legal guardian and in the event that both parents are deceased, children who are minors go to a court-appointed guardian. Therefore, it is critical that this decision be made and clearly stated in a will. Keep in mind that this type of decision can only be stated in a will and not a trust. A trust might designate someone to take control of your child’s property, but not the child.

Making these designations is especially important for unmarried couples if one or both parents are not biologically related to the child. Make sure you are aware of the adoption rules in your state and consult with a lawyer to ensure your estate planning documents cover all the issues important to you and your loved ones.