Young parents often mistakenly believe that they do not need wills if they don’t own assets of significant value.  However, parents shouldn’t overlook the importance of protecting what’s most valuable to them – their children.

There are several ways that a valid last will and testament can provide protection for a minor child, one important example being that Alabama law allows parents to appoint a guardian for their minor child.

What is a Guardian?

A guardian is a person who has legal responsibility for a minor child in lieu of the child’s parents.  A guardian is appointed when a child’s parents are deceased or otherwise unable to care for the child.

When would an appointment of a guardian by will be helpful?

  1. First, if both parents die or become incapacitated;
  2. Or, if one parent dies and the surviving parent has no parental rights.

What Happens if I Don’t Name a Guardian in My Will?

If either of those situations arise and you have not nominated a guardian for your children in your will, then it will be up to the court system to select a guardian without your prior input.  In other words, you will be leaving the decision of who takes care of your children up to strangers.  Without your nomination to go on, there is a greater chance that the court will choose someone other than the person(s) you would have preferred.  While the court will do its best to select a guardian that is best for the child, you can help avoid the possibility that they get it wrong by simply memorializing your preference in your last will and testament.

Generally, the court will try to appoint a close relative of the child if the child’s parents have not nominated a guardian. But what if the person you prefer is not a blood relative of your child?  In that case it’s particularly important to record your wishes in a legal document because otherwise your top choice is unlikely to be chosen by the court.

Additionally, having the parents’ nomination of a guardian for their children recorded in their wills can help avoid conflict among the surviving family members.  Without your nomination to guide them, your child’s relatives will be free to speculate to the court about what you might have wanted.  This can lead to disagreements, hurt feelings, and even lengthy, expensive court battles over who should be appointed. Many parents try to avoid these kinds of conflicts by not only designating a guardian in their wills, but by also including in their wills their wishes concerning grandparent or other relative visitation. Another strategy that some parents use to prevent discord is to have open and honest conversations with their relatives about the nominations they have made in their wills soon after they sign them, or to leave with their wills a letter explaining their decisions.

What if My Child’s Other Parent and I Disagree About Who Should Be Appointed?

Parents often try to reach an agreement about who should take care of their minor children in the event they both die, but that’s not always the case.  What if each parent nominates a different guardian in his or her will?  In that case the will of the second parent to die has priority.

What if My Nominee Doesn’t Want to Be A Guardian?

There is a chance that despite your best efforts to carefully select a guardian, that person won’t be available or willing to serve when the time comes.  Your nominee could become mentally incompetent or too physically disabled to care for another person, could move out of the country, or could even predecease you.  Also, while many people are flattered and honored to be nominated as a child’s guardian, other people may not want that responsibility.  For these reasons it’s a good idea to name an alternate guardian (or several) as backup in case your first choice is unavailable.

What if I Change my Mind?

Circumstances change, families blend and separate, and so your perspective on who should be your children’s guardian may adjust over time. Just like any other aspect of your estate plan, you should review your guardianship nomination at least annually. A good estate planning attorney can help you efficiently revise your will to update your nomination if your preference ever changes.

Am I Guaranteed that the Person I Appoint Will be My Child’s Guardian?

Your nomination is given strong consideration, but the court will have final say. For example, if you nominate your mother as your child’s guardian, but she later develops dementia and is incapable of caring for herself, let alone a child, then a court will find another appropriate guardian for your child despite your nomination.  Or, if you appoint Bill Gates and Melinda Gates as your child’s guardians even though they are complete strangers to you and your child, the odds are that the appointment will not be accepted and a substitute will have to be found. So, it’s important to carefully consider who will be a good guardian for your child, who is likely to accept the appointment, and who your alternate nominees should be.

Why Else Do I Need a Will?

In addition to allowing you to nominate a guardian, your will can also protect your children by planning for their future financial needs.  Your will can be used to nominate a second person (other than his or her guardian) to be in charge of your child’s finances.  While it is common for one person to serve both of those roles, in some cases it makes sense to split the duties and have one person care for the child’s physical care while another one manages the child’s financial needs. Read more about why you need a will by clicking here.

Are You Ready to Work on Your Estate Plan?

The attorneys at Lewis, Lewis & Falkner are ready to help you plan for your future.  Call us at 205-553-5353 or stop by our downtown Tuscaloosa office to get started on your estate plan.

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