Choosing a Guardian for Your Children: Do it Now

Let's be plain. I have no will, because I have no money. I think of wills as something for people with a summer home in the Hamptons and fine silver. According to Forbes magazine, I am not alone, 65 percent of Americans also have no will. But it occurs to me that I do have something far more valuable than money and heirlooms: children.

What will happen to our kids if both their parents die is not something we think about lightly. For most of us, it falls under the 'Too Awful to Contemplate' heading. I remember having trouble breast-feeding my first child as a newborn and both my husband and I being so acutely aware of how utterly dependent she was on us for her very survival. Now, with a 2 and 5 year-old, this feeling has only dulled mildly. I recently found myself thinking about this on a long drive through the vast LA freeways — cars and freeways are to me what airplanes and turbulence are to others.

“Please,” I thought, “just let me get my kids somewhat launched, let them get to 10 or 12, before becoming orphaned.” At least then, I figure, a child will have a moderate base of common sense and security about them. But just the thought makes my throat tighten up.

Still, think about this we must. If we don’t and something should happen, it could be up to a judge to decide who will become our children's legal guardian. So deciding whom you want to have custody in this event and recording it in a legal will is crucial. It's just as important, if not more, as saving for college, providing good nutrition, and so many other activities we do in our kids' interest. And it's certainly more pressing, given that you have no idea when this kind of event may occur.

Time to re-file this topic from 'Too Awful', to 'Do it Now.' In doing so, there are two things to consider: whom you will choose, and how you will make this known in a legally binding way. Of the two, picking the guardian is certainly the toughest.

Before doing so, it helps to have both parents make a list of what factors they’d want to be considered, in order of importance. These are things like lifestyle, location, finances, religion, and age (remember the guardian could be up to 17 years older than when you first designate them if they assume the role).

Another thing to consider is whether you want the same guardian to oversee both your child and the child’s finances. Because children cannot own property, a guardian must be named to manage the estate. You may choose the same person to care for your child and manage the finances or you might decide to choose two different people. For instance, you might name your sister as your minor child’s guardian but knowing she’s terrible at managing money, choose your brother to be in charge of the finances. That being said, it’s usually better to have the same person in charge of both your child and the finances. Ideally, you would have money to leave to the guardian to help in raising the child, but if you don’t, that person’s own financial situation becomes an even bigger determinant.

Too, this might seem obvious, but before naming anyone to be guardian of your minor child, ask him or her first. While you may think your best friend is the perfect person for the job, she might think otherwise. Likewise, your situation might change. The best friend who supported you when your children were young might not be interested now that they are all teenagers. So it’s a good idea to reconsider this aspect of your will as your child grows.

It’s typically discouraged to name couples as guardians. If the couple splits up, it could cause a legal battle over who gets your child. (Besides, many fights over who to name as guardian stem from one partner's dislike of a spouse. You may be OK with your wife's sister, for example, but not be wild about the idea of her husband's getting your kids if the sister should die.) If you'd be truly happy with either person, name the person you want most as guardian, and the partner as the backup.

Once both parents have agreed on who the guardian will be, and that person has also consented, the only thing left to do is create a will. To do this, you can either pay a visit to an estate planning lawyer, or use an online service such as Legalzoom.com. Doing it online is certainly the quickest and cheapest way, which starts at $69. But if you have any questions about special provisions, or much in the way of assets, a trip to the lawyer is not a bad idea.

Whomever you choose and however you do so, moving this onto the 'Planned For' list will help you feel just a little less terrible about the unlikely prospect it raises. Hopefully you and your partner will agree on the perfect person, they will be pleased as punch to agree, and you’ll put it in writing that no one will ever have to read again.