Deciding who will care for your minor children if something happens to you is a tough decision in any circumstance, but it is a decision that you are most qualified to make in your lifetime. Without proper planning, your wishes might not be followed later.
In most cases, if you die leaving minor children, the other parent will raise and support them. Similarly, in the case of a divorce, when a custodial parent dies, the non-custodial parent has priority in seeking guardianship and custody unless unfit.
However, if the other parent is also deceased, your minor children will require a guardian. This is an individual who is appointed by the court to look after the direct physical well-being of your minor children and the assets of the estate left to them. Generally, the guardian provides whatever care would be given to children by their parents.
It is highly recommended that you assume the responsibility for this important decision, rather than leaving it to a judge who is unfamiliar with your family situation. Even though the court has the ultimate authority to appoint a guardian, your Will is the only way to convey to the court who you want to raise your children.
Designating a guardian in your Will doesn’t only help guide the court; it also helps prevent family arguments over who is better qualified. Technically, your choice as guardian is just a recommendation to the court. However, the Commonwealth of Massachusetts gives high priority to your recommendation. Typically, the court will honor your choice unless there is compelling evidence against your designee.
The greatest piece of mind that parents of minor children can have is to select and know who will take care of their children in the event that something happens to them. Scheduling a consultation with an experienced estate planning attorney is the first step to ensuring that your choice of guardian is appointed.
By: Todd C. Ratner, Esquire
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