As a parent, it’s natural to think “If I die, what will happen to my child? Who will take care of them?”. It’s not something we enjoy thinking about, but we inevitably do. If you have a child under the age of 18, you need to have a will that names a legal guardian or guardians.
If you don’t name a legal guardian before you die, the court will decide who will care for your children, and don’t assume that the court will automatically grant custody to aunts, uncles, or even grandparents of the child.
Without specifying a legal guardian in your will, you’re leaving this immensely important decision up to complete strangers.
Also keep in mind that legally speaking, the surviving parent has the right to custody if the other dies. If this is something you don’t want, you should start planning now.
When drawing up your will, it’s a good idea that you and the other parent are on the same page regarding the legal guardian(s) so you can include the same name(s) in both of your wills to avoid possible problems in the future. Also, think about naming an alternate guardian should your original choice be incapable of taking on the responsibility for whatever reason.
While the choice of a child’s legal guardian is a highly personal decision, there are some considerations that everyone should think about.
1. How many children do you have under the age of majority?
The age of majority in the State of Ohio is 18. Make sure every child under 18 is all provided for individually in your will. I know this sounds basic and obvious, but don’t name one child and assume the court will automatically grant custody of all of them to the same legal guardian. This could be a particular concern if you have a child or children with special needs.
2. Do you want all of your children to live together?
If it’s important to you that your children stay together, be sure to specify this in your will. In fact, this may even be more important to you than the legal guardian. If so, make sure to state that in your will. If for some reason the court doesn’t approve your choice of a guardian or your chosen guardian can’t serve, but you still want your children to stay together with a different guardian as named by the court, make this preference clear in your will.
3. Can your chosen guardian handle all of your children?
This is especially important if you prefer that your children stay together. Is your chosen guardian in the position to care for all of your children, emotionally and otherwise? Does your guardian or guardians have other children as well? How will the two families blend?
4. When should you consider co-guardians?
If you prefer to have your children raised in a two-person home, be sure to name each member of the couple as a co-guardian. For example, if you want your sister and your brother-in-law to jointly raise your children, be sure to include them both as co-guardians.
5. How old is the chosen guardian?
Many people immediately think of their own parents for guardians of their children, but take a moment to consider the age and general health of your chosen guardian. Will they be able to handle the physical demands of raising children. If your children are nearing age 18, this might not be as much of a concern, but if you have younger children, it could be a very important consideration.
6. Where does your chosen guardian live?
Is he or she in the same city as you or in another state? How far away will the other family members and important people in your children’s lives be? Will your children have to handle moving to a new place in addition to the loss of their parent(s)?
7. Will your child change schools?
Many parents prefer that their children be able to stay in their same school or at least the same school district. It’s important for you to consider where your child would be attending school while living with their new guardian.
8. Is the guardian up to the task financially?
As a parent, you know that raising children is expensive…really expensive. While ideally, you’ll have prepared financially for your children ahead of time with estate planning, make sure to consider your chosen guardian’s financial resources as well.
9. Does your chosen guardian share your personal and religious values?
You would probably prefer a guardian who shares your basic values so that your children will be raised similarly to the way you would have. If a religious doctrine or not teaching religious doctrine is particularly important to you, that’s something to consider as well.
10. Make sure you have a heart-to-heart with the chosen guardian.
Before you make the decision to name a guardian, sit down and talk with your choice. First and foremost, you want to make sure that he or she agrees to become the guardian of your child should anything happen to you, but it’s also useful to discuss all the considerations mentioned above so you know for certain the answers to those questions.
While it may be difficult to find someone who meets all of your criteria, consider the factors on this list carefully and make the best choice possible for your children.
