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Considerations When Selecting a Guardian for Minor Children

It is something every parent thinks about—what will happen to my kids if I die? It’s, understandably not one of the most pleasant things to think about, but having a contingency plan in place in the event something happens can be essential to having piece of mind about a child’s future should something unforeseen happen.

An individual responsible for the care of a child is called a guardian. Sometimes that roll can be confused with a trustee, who is responsible for management of any inheritance a child may receive before turning 18. While they can be the same individual, the rolls can also be separated.

How is a guardian appointed?

The most common way to leave instructions about who you would nominate as guardian of your children is in your will. In Illinois, for example, a guardian can be nominated in writing (including a will) if the nomination is witnessed and attested to by two witnesses. Given that wills must meet that same standard, it is no surprise that it is the most common way for a guardian to be nominated.

Nominating a guardian in your will is prima facie evidence that it is your valid intent. What does “prima facie” mean? Well, it means that unless proven otherwise, it is presumed to be true. Much like an individual accused of a crime is innocent until proven guilty, appointing a guardian in a valid will creates an assumption that you want that person to be the guardian of your children unless evidence arises that would show otherwise.

What happens if I do not nominate a guardian for my minor children?

The short answer is “it depends.” Like most things in the law, how the determination is made will depend on state law. In Illinois, absent a valid nomination, a court will appoint a guardian. Who might that be? Well, it could be any number of individuals from a grandparent to an adult sibling, aunt or uncle. The court makes a determination based on what is in the best interests of the child.

While that doesn’t sound too bad, consider a situation when you and your spouse pass away and there is a grandmother on each side that requests that the court appoint her to be guardian of your children.  While you both love your mothers dearly, perhaps you and your spouse decided that you would want your children to be raised by your sister. While you and your spouse may have discussed this very scenario while you were still alive, if you did not formally nominate your sister, the court has no way of knowing what your wishes were. So, not only may the court not appoint your sister as guardian, it may lead to strained relationships between the families when the grandmothers essentially fight it out as they make their cases about why each should be appointed over the other.

Without making your wishes known—and making them known in a manner the law respects, your children may not be left to who you would have picked. That’s why it’s essential for all parents to have a valid will and make a nomination of a guardian in that will. 

Michael F. Brennan is an attorney at the Virtual Attorney™ a virtual law office helping clients in Illinois, Wisconsin, and Minnesota with estate planning and small business legal needs. He can be reached at michael.brennan@mfblegal.com with questions or comments, or check out his website at www.thevirtualattorney.com.

The information contained herein is intended for informational purposes only and is not legal advice, nor is it intended to create an attorney-client relationship. For specific legal advice regarding a specific legal issue please contact me or another attorney for assistance.

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