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The K & B Blog

The Benefits of Having a Will that Names a Guardian for your Minor Child

The Benefits of Having a Will that Names a Guardian for your Minor Child

Whether you are a new parent or you have been a parent for many years, there are many advantages in having a will that provides for your minor child. It can be overwhelming to consider a difficult subject like death; however, it is necessary and in the best interest of your child. Continue reading to learn why nominating a guardian for your minor child is beneficial.

In the event of your death, having named a guardian for your minor child in the will simplifies the process for everyone. It is likely that the court will accept your wishes and make the guardianship official. However, if issues are raised as to the suitability of the candidate you name in your will, the court may have to hold a hearing regarding the guardianship. By setting forth your choice as to the guardian of your child in the event of your death you have much sway in the matter. As the parent of your child, you are in the best position to assess those who are potential guardians for the child, the relationships between your child and potential guardians, as well as who would be best able to care for the child.

It is important to note that a minor child can have more than one guardian. Perhaps it makes sense for the child to be cared for by one guardian when the child is school age and more active after a grandparent cares for the child during the toddler years. It is also a good idea to provide for a back-up guardian in your will in the event that your first choice for guardian is unable to serve at the necessary time.

In the event that the child’s parents both leave wills that indicate preferences for different guardians, the process is somewhat complicated. It is common for guardianship to be placed with the surviving parent, if only one of the parents dies. In that case, if the second parent dies, the guardian nominated in the will of the last of the parents to die is likely to be the guardian assigned by the court. However, if both parents die in the same incident and each parent has named a different guardian, the court will likely hold a hearing to choose the best guardian for the child.

If you do not nominate a guardian in your will, the court is obligated to choose the most fit guardian for the minor child. After an evidentiary hearing, the court will choose the best guardian for the child or children by taking into account a number of factors. Some of these factors include proximity of relationship to the child, least disruption to the child’s life, and a potential guardian’s individual fitness for guardianship. Because the court evaluates all candidates for guardianship, grandparents, aunts and uncles, or other family members are not shoo-ins for guardianship. Anyone with a preexisting relationship to the child can self-nominate for guardianship and present evidence regarding their fitness. Further, the court will make an objective determination based on the evidence presented at the evidentiary hearing. In such case, the court would not have the benefit of knowing your preferences for your child’s care because you have not left a will indicating them. Even though the court will make the best determination it can, the court cannot possibly know your family and children the way you do.

Now that you know a few of the benefits of creating a will that provides for the care of your minor child, you may have other questions about your will. Contact an attorney at Kelly & Brand, Attorneys at Law, LLC today for sound legal advice tailored to your unique circumstances.