UPDATED: December 12, 2019
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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 for 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 the 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'll probably see this 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.