If you have minor children, this fact should be reason enough to have a will. While a court will not absolutely be bound to appoint the guardian that you have named in the will, your wishes normally will be respected. After all, you care about, and know, your children much better than any judge who will appoint their guardian, so why shouldn't he or she go along with your selection?
In selecting a guardian for your minor children in your will, you should keep these factors in mind:
- There are two types of guardians that your children will need: a guardian of the person and a guardian of the estate. The guardian of the person is the one with whom your child will live; this person will stand in your shoes to make the typical decisions that are made by a parent for his or her child. The guardian of the estate is the person who has the responsibility of managing your child's wealth (which came to the child from your estate, or from other sources) while the child is a minor. The same person can — and usually does — serve both as guardian of the person and guardian of the estate. But, this does not have to be the case. You might have the situation where there is a family member who you would want to raise your children in your absence, but who you think is not able or willing to take on the task of managing the children's assets. In this case, you could designate someone else (or a corporate fiduciary) to handle only the money matters.
- Make sure that you and your spouse agree on the same guardian. You might think that this would not be a big deal, since only the guardianship provision in the second-to-die parent's will would normally be utilized (guardianship automatically falling to the surviving spouse after the first spouse's death), but there are at least two situations where a failure to agree on a guardian could cause a problem. First, if both spouses die in a common disaster, the judge is faced with each of the wills nominating a different guardian. Second, if anyone contests the appointment of the person nominated in the surviving spouse's will, the fact that the other spouse died wanting another person appointed might add fuel to this action.
- If you truly trust the person who you nominate as your children's guardian, you should normally have your will give this person the greatest possible authority to deal with your child's property, and should consider waiving the requirement that the guardian be required to post bonds with respect to the property subject to the guardianship. Doing this should cut down on the number of times that the guardian (or the guardian's attorney) has to go to court for permission to enter into transactions necessary for management of the property. If you really don't trust the guardian all that much, then by all means don't give him or her such wide powers to deal with the property, and don't waive the bonding requirements. But if this is the case, why would you nominate this person in the first place?