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Estate Planning Strategies: Providing for Children

Estate planning strategies for people with minor children must contain guardianship provisions

Name Personal Guardian for Children

There are triggering events that cause people to change their estate planning strategies. While kids are the best thing to happen to many of us, having a baby is a life event that should trigger a person to change their previous estate planning strategies by updating their plan. The real concern amongst married couples is what will happen to the children if the parents die simultaneously. Alternatively, if you’re a single parent and the other parent is dead, has abandoned the child, or is unavailable for any reason, the worry centers on what will happen if you die before the child reaches adulthood (18 years of age).

If a minor child has two capable and willing parents and one dies, the surviving parent has the right to assume sole custody. This rule applies even if the parents were never married or got a divorce, so long as the parents are both participating in raising the child(ren). The estate planning strategies for naming a guardian gets complicated when both parents die, a sole parent dies, or a “custodial” parent believes the other should not receive custody of the child. There are some California laws that apply to these situations, which influence your underlying estate planning strategies.

Estate Planning Strategies & Rules for Naming a Guardian

All “minors” (younger than 18 years of age) must be raised by an adult that is responsible for the child’s care. If there is no parent, close family relative, family friend, etc, capable of handling the affairs of the child, then a “personal guardian” will be appointed by the court. This is clearly n0t what any loving parent wants when creating solidified estate planning strategies to provide for their children in the event of their demise. Not is all lost, however.

Creating a will as part of your overall estate planning strategies will allow you to nominate someone to be your child’s guardian. You should also name a successor personal guardian in case the first choice is unable to act. What estate planning strategies should a “mixed” family where the children don’t share the same parents employ? Naming a different personal guardian for each child is legal and court’s will typically follow these arrangements, unless there is evidence that it would be harmful to the child. Sometimes, it can be helpful to include information in your will about why the personal guardians named are best for the welfare of the children.

What happens if you don’t want the “other” Parent to become personal guardian?

Smart estate planning strategies entail parents to name personal guardians for their children There are many reasons why one parent may not want the “other” parent to have custody. The obvious – the “other” parent is dangerous, destructive, physically and/or mentally abusive, etc.   Another common reason is due to remarriage.  Often, parents find their second spouses as much more suitable guardians for their children than the biological ex-spouse. Additionally, they may not care for the new spouse of the “other” parent. The real quandry arises when the “custodial” parent dies leaving a biological or legal parent. Courts generally will not appoint someone other than a biological or legal parent unless that parent:

  • Is Unavailable
  • Has Legally Abandoned the Child, or
  • Is an Unfit Parent

The rules for denying a parent to become personal guardian are complex and often change estate planning strategies.If you’ve named someone aside from the “other” parent, that person will likely get to act, unless, of course, the “other” parent objects. In that case, the above rules apply.

About Sean Hanley

Practicing law since 2007, Sean specializes in the ever-changing laws related to real estate, business and estate planning. Embracing technology with a focus on personalized service, he understands the challenges of living and thriving in Silicon Valley. Tapping into his education in economics and business administration, Sean also serves on the non-profit Willow Glen Business Association.

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