Why A Guardianship Clause Is Essential If You Have Minor Children

What is a Guardianship Clause?

A guardianship clause is a provision contained in a person’s will (or trust, in some jurisdictions) that nominates a person to take physical and legal custody of their minor children in the event that the person and their minor children’s other parent(s) pass away or become incapacitated.

Legal Requirements for Guardianship Clauses

Generally, in most U.S. states, guardianship nominations must be: (1) in writing; (2) contained within a will or trust; and (3) executed with proper legal formalities, (generally two disinterested witnesses and a notary public who notarizes the will or trust at the time of execution).

Why You Should Get Guardianship in Place

Generally, if you lack at least a general estate plan, consisting of at least a will, you will generally have no legal guardianship in place. If you have no legal guardian in your estate plan and you and your children’s other parent(s) die, a court will decide who will take custody of your children. This could obviously result in a choice that you and your co-parent may not agree with and things such as custody fights between family members could arise.

Guardians, Trusts and Money Management

Ensure that you separate physical guardianship (raising your children) from financial guardianship (managing their inheritance), should you believe that these should be different people. You can set up a trust and appoint a trustee to handle finances and avoid court-appointed oversight.

This structure also avoids burdening one person with too many responsibilities and adds another layer of protection for your children’s future.

Choose Guardians

Choose the person who you would be best to raise your children if you pass away before they reach adulthood. Then choose 2-5 backup guardians to cover potential events where your guardian could pass away before your children reach adulthood, or if they become unwilling or unable to serve as guardian to your children. Consider things such as your chosen guardians willingness to serve as guardian, location, age and health, financial situation and parenting style.

Do you need assistance with preparing an estate plan with a guardianship clause? We’re here to help. Quick turnarounds and no surprises.

Contact Biazzo Law today at (703) 297-5777 or alyssa@biazzolaw.com to schedule a consultation today. www.biazzolaw.com 

** Information in this newsletter email should not be considered legal advice, nor does it form an attorney-client relationship

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