Guardianship Provisions

The thought of leaving children alone in the world is an unsettling one for any loving parent, but it needs to be considered. Ensuring that your children are well-cared-for in the event of your death is so important that it is usually the very first provision of a simple will.

This guardianship provision requires specific language to ensure that your children are both cared for and that they properly inherit under your will.

Naming Family Members in the Guardianship Provision

The first part of the guardianship provision is the naming of all members of your immediate family. Naming the family members assists the children’s personal representative in finding nearby relatives and locating assets.

The naming portion of the guardianship provision should appear in the following format:

I am married to Sue L. Smith, referred to in this will as “my wife.” I have three children, all from this marriage, whose names and birthdays are:

Abigail S. Smith  June 23, 1998
Heather L. Smith August 18, 2001
Samuel R. Smith May 15, 2005

Mention Children Born Later

There are many cases of families having a new child and the parents dying before the will is updated to reflect his/her existence. If these children are not mentioned in the will, they will collect under the state’s intestacy laws instead of under your will’s instructions. This typically results in an uneven distribution, which may not be your intent.

In order to prevent this from happening, you must acknowledge the possibility of after born or adopted children in your guardianship provision. An example of the wording for this provision is: “Reference to “my children” or “my child” shall include children born later and children adopted by me. I have no deceased children.”

Appointing the Guardian for Minor Children in the Guardianship Provision

While your children are still minors, they will need a guardian to care for them. A guardian is a person you want raising your children in your absence. It can be an adult child from the family, a relative such as the children’s aunt and uncle, or a close family friend.

Remember that this person will be responsible for all the major decisions in your children’s lives, including guiding their education path, personal beliefs, and overall character development.

You should also take into account the age and compatibility of the selected guardian(s) with your children (and with each other, if more than one).

An example of a guardian of person clause would be: “If my wife does not survive me, and it is necessary to appoint a guardian, I appoint Ginger and Walter Graham guardians of my children. If for any reason Ginger and Walter Graham do not act as guardian, I appoint Sarah and Matthew Smith as guardian of each minor child.”

Guardian of the Estate

Sometimes, you might feel that the best candidate for raising your children is not the best person for making financial decisions regarding your estate. When this happens, you can appoint a separate person as guardian of the estate. This guardian can also be a family member or friend.

If you have a trust, the trustee can also be a financial institution or attorney. An example of this provision would be: “If my wife does not survive me, and it is necessary to appoint a guardian for my estate, I appoint Samantha L. Carter as guardian of the estate. If for any reason Samantha L. Carter does not act as guardian, I appoint Jack L. Russel.”

How Do I Draft the Rest of My Will?

Estate planning is a complex area of the law that requires specific wording to ensure your intent is understood and protected. If you have any questions about how your will should be drafted, contact an estate planning attorney for a consultation.

Case Studies: Guardianship Provisions

Case Study 1: Naming Family Members in the Guardianship Provision

John Smith, a loving parent, includes a guardianship provision in his will. The provision starts by naming all members of his immediate family, including his wife and three children: Abigail S. Smith (born June 23, 1998), Heather L. Smith (born August 18, 2001), and Samuel R. Smith (born May 15, 2005). By providing this information, John ensures that the children’s personal representative or guardian will have the necessary details to locate relatives and assets.

Case Study 2: Mentioning Children Born Later

Sarah Johnson understands the importance of acknowledging the possibility of children born after the creation of the will. To prevent an unintended distribution of assets, Sarah’s guardianship provision explicitly states that the term “my children” or “my child” includes children born later and children adopted by her. She ensures there are no ambiguities regarding the inclusion of any future children.

Case Study 3: Appointing the Guardian for Minor Children

Sarah Johnson wants to ensure that her children are raised by a trusted individual in her absence. In her will, she appoints Ginger and Walter Graham as the guardians of her children. However, she also includes an alternative provision stating that if Ginger and Walter Graham are unable to fulfill their roles as guardians, she appoints Sarah and Matthew Smith to act as guardian for each minor child.

Case Study 4: Guardian of the Estate

Sometimes, parents may feel that the best person to raise their children is not the most suitable for managing the financial aspects of the estate. In this scenario, Samantha Carter is appointed as the guardian of the estate in case Sarah Johnson’s husband does not survive her. However, Sarah includes a provision that if Samantha Carter is unable to fulfill the role, Jack L. Russel will assume the responsibility of the guardian of the estate.