One of the most important decisions that a single parent can make regarding the care of a minor child is the appointment of a testamentary guardian in the event of the parent’s death. The appointment of a testamentary guardian is done in a Will. In essence, a guardianship clause in a Will determines who will get custody of the child upon the parent’s passing.
If you are divorced, then it is very important that you have a Will. While the remaining parent will likely become the guardian of your child, unless that parent has been declared unfit, the Will of the last parent to die will determine the guardianship of any minor child. To illustrate: if a divorced mother with a Will predeceases her divorced husband who later dies without a Will, the mother’s designation of a testamentary guardian will prevail.
How should you choose a testamentary guardian for your minor child? There are several factors to be considered, such as:
- the health of the guardian;
- the person’s values;
- whether the proposed guardian has children already and, if so, whether their ideas on parenting are in agreement with yours;
- if religious upbringing is important to you, whether the proposed guardian shares your beliefs;
- whether the proposed guardian shares your educational values;
- whether the person is willing to comply with all of the court procedures on a yearly basis;
You should consider appointing an alternate guardian who will also meet the same criteria as the designated guardian in case the designated guardian cannot take on the duties in the event of your death. Note that, depending upon the age of the minor child at the time of the parent’s death, any designated guardian or alternate may have to serve for quite a long time. Therefore, a designated guardian should reflect carefully upon the duties involved before making the commitment.
Regardless of the presence of an ex-spouse, a single parent will want to assure the unencumbered transfer and management of non-probate assets for any minor child through a Will. If your minor child is named as a beneficiary of your life insurance policy or retirement plan, then that property will pass outside of probate directly to your child. In your Will, you may want to consider either appointing a separate guardian for your child’s property or establishing a testamentary trust.
If there are multiple children, provision may be made in the testamentary trust to pool the assets in order to afford the trustee discretion in caring for differing needs of the children. This is especially important if there is a special needs child. Without a Will, each child will receive equal shares without any regard to the different care needs of each child.
In the case of a testamentary trust, the parent (grantor) will want to designate a trustee to manage the proceeds of the trust until the child reaches majority. The designated trustee must agree to meet annually with the probate court and show that the trust assets are being dispersed responsibly.
A single person should consult with an attorney to draft a Will that will provide for the proper care of minor children in the event of the parent’s death. The attorney will assess each individual situation and provide guidance as to how best to protect the minor children and their assets.
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