The most common excuse by parents of young children for putting off writing a will isn’t what you might think. They know that they need a will, and it’s not just that they don’t plan on dying. It’s that they cannot decide – or agree – upon a guardian for their kids.
Although writing a will is easy, deciding on a guardian and how to provide for their kids’ financial needs is far more difficult. Thus, many parents do the worst thing: they do nothing, which means the decision, if one becomes necessary, will be made by a judge in a probate court.
Don’t let a stranger decide who will raise your kids. If you’re stuck on how to proceed, the following may help:
Sit down with a pen and paper, and answer the following questions, providing as much detail as possible. If you are deciding as a couple, answer the questions separately and then compare your answers.
Some of the questions will take some thought, so you may not be able to answer them right away.
That’s okay. Answer what you can in the first sitting and then set a deadline to finish the rest.
First list your candidates for guardian then listen to your gut instinct, and answer the following questions with each of your candidates in mind.
Remember, you are planning for the event that your kids have just lost their parents…losing another set can be twice as devastating. A lot of people want to name grandparents, but are they too old?
Is he/she physically and mentally able to accept the responsibility or have the energy? This is another caveat to naming grandparents: they may be great weekend babysitters, but having your kids permanently might be a different story. Are they up to it?
If so, would adding yours to the household total too many? Raising a family is expensive and hectic, particularly for many two-income families. Your candidate may already feel that his or her plate is full (or even overflowing). Conversely, if he/she doesn’t have kids, are you confident they know how to raise children?
Is he/she part of a two-career family, or does one parent stay home? Would the candidate be likely to rely on day-care, and do you have strong feelings about whether your kids are raised in one environment or the other? You’ll want to consider a guardian who shares your beliefs.
Do you insist upon home-schooling or private education? Does the candidate share your religious beliefs? Will he/she raise your children with the same values and cultural traditions you would have provided?
Moving your kids to some far-away place after losing their parents can make a difficult time for them even more difficult, for they will have lost not only their parents, but everything they are familiar with – school, friends, nearby relatives and favorite places. In some cases however, the best candidate for the job doesn’t live nearby. In such cases, perhaps the transition can be eased. For example, if possible, let them finish the school year where they are, or provide the money for them to come back for a long summer visit every year.
If so, you might want to consider adding a statement about who gets your kids if they divorce. And, if one of them dies, would you still feel comfortable letting the survivor raise your kids?
While you shouldn’t let wealth (or lack thereof) be the sole basis for choosing one candidate over another, you do want to know your kids will be in a financially stable and safe environment. While you probably want to leave all your money to your kids, be realistic about the financial impact raising them will have on their guardian. The guardian is sure to incur expenses associated with raising your kids, such as adding a room onto the house or buying a bigger car, so you should make your assets available to help them for those purposes. Otherwise, the guardian (or the guardian’s spouse or children) could become frustrated. A good estate planning attorney can help you achieve a balance.
As you consider these questions, feel free to change your mind. You may also find that you preferred certain people for some questions but not others. That’s okay, too: this process is all about identifying strengths and weaknesses of potential guardians, not just spouting out an answer based upon emotion alone. Often times the most appropriate person is the person who got the most marks, not necessarily all of the marks.
Only after you reach a decision, if you are deciding as a couple, should the two of you compare notes. By having written down the reasons for your preferences beside each question (and not just the names), each of you can better understand where the other is coming from, and perhaps your spouse’s reasoning makes better sense than yours.
Then, choose someone! Pick a guardian you both can agree on, even if that means you accept someone who is not necessarily your personal favorite. After choosing, be sure to ask your candidate if they accept the nomination. Ask them to sleep on it, and to obtain the consent of their partner, if any.
Above all, remember: if you fail to make a choice, you are leaving the decision up to the probate court, where all of the people you considered above (and possibly others) will fight over the decision, with the judge acting as referee. It’s a very difficult task for a judge, since he or she has never met you and will have no idea what you would want.
If the thought of making a choice sends you into a panic, remember that you can always change your mind. Several of our clients change their minds every other year, as circumstances in their families change. If your parents seem to be the best option today, pick them. In a few years, when they’ve gotten older or become ill, you can change your selection. Or maybe your choice marries someone you don’t like, or suffers a setback of some kind. No problem. Just base your decision on the facts as they are today, and rest assured that as times change and people change, your mind can change as well.