When you think of preparing your estate plan, documents such as a will, living trust, and an advance health care directive may come to mind. However, one of the most important and sometimes overlooked parts of estate planning is the guardianship designation. Parents can use this provision to help make certain that decisions about their children’s care and well-being, end up with the right people. If you are in the process of estate planning, it’s critical to ask: Do I need a guardianship designation in my will? If you have minor children, the answer is an absolute yes.
What is a Guardianship Designation?
In a California will, the guardianship designation is the section of the will where a parent or legal guardian names the person they want to take care of their children in the event of their death. The designation can be for two purposes: guardianship of the person and guardianship of the estate.
Guardianship of the Person
- In California, when someone has guardianship of the person of a minor child, they are responsible for making sure the child’s physical needs are met. Meaning that they will provide for the child in terms of food, clothing, and shelter. The guardian will also ensure that the child’s educational and medical needs are met.
Guardianship of the Estate
- Guardianship of the estate refers to when a person is named to look out for the financial interests of a child. If you died while your children were still minors, someone would need to manage any physical property they inherited from your estate. The guardian’s responsibilities could also include handling beneficiary funds from life insurance policies, retirement account, and trust disbursements.
When you name a person to serve in these roles, you are nominating them as someone for the court to consider. Ultimately, a court will have the final say as to whether designating the proposed guardian or guardians (often they are the same person) is in the best interest of your children. That being said, if the proposed guardian or guardians don’t appear to present a danger to your child’s physical or emotional well-being, the court is likely to give them serious consideration.
What Happens Without a Guardian Designation?
If you have minor children and do not have a guardianship designation, your kids can be placed in an uncertain position, should something happen to you and their other parent. If the other parent is not alive or is unable to take the children, a California family court would have to become involved and determine who should be responsible for your children. Unfortunately, once the family court process begins, finding suitable individuals to fill these roles can take an extensive amount of time. During this period, your kids could be left in an uncertain position, and without the stable and familiar caregiver, they need during a difficult transition.