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Most people fail to make adequate provisions for their children in the event of their death. Parents think they can name a
guardian informally or in their will and that this "nomination" will allow an individual to function as their children's guardian
until each child reaches the age of majority. Unfortunately, nothing could be further from the truth.
When your estate is admitted to probate, the court must appoint a guardian for your child. If you nominate a guardian
through a provision of your will or an independent instrument, the court may accept your nomination or it may not. The
court may appoint a third party to be the guardian of your children or may split the appointment between a number of
individual who may serve as either "guardian of the person" or "guardian of the estate" for any one or number of children.
Even if your nominated guardian is accepted, it is important to remember that the court, not the guardian, will retain control
over the children's estate. The court will require annual accountings (at a minimum) and may require a bond to be filed by
the guardian. Bonds are expensive and increase in cost with the size of the estate.
If your spouse is living after your death, the court may still require appointment of a guardian. This requirement may be
triggered by the court (by the court's own initiative) or by a relative or third party who makes a petition to the court. The
guardianship proceedings are costly in an economic sense but can tear families apart from an emotional perspective.
Moreover, all of the guardianship proceedings will be public, exposing your family to scrutiny during a time of grief. In short,
the guardianship proceeding is not a pleasant process.
Some people think they avoid guardianship concerns by including a children's trust in their will. Unfortunately, because it is
part of a will, the children's trust can only go into effect after the will has been probated. As a result, the court must still
probate the will and include the appointment of a guardian as part of the process. It could be months or years before your
children receive assets under the children's trust. If the children need economic assistance for their care and support, they
must maintain a petition for expenditures through their guardian. If you become physically or mentally incapacitated, you
are still alive, so your will cannot be probated and the children's trust cannot go into effect. No beneficiary proceeds can be
paid because no one died.
