Appointing a Guardian for a Child Outside a Will

Do you want to appoint guardians for your children?

It’s important to have a plan in place when you have a growing family.

Pear Sperling Eggan & Daniels, P.C. estate planning attorneys are here to help you plan for the unexpected.  

When someone dies, a will is the most common document friends and family will search for when there is a death. Your will may also include a guardianship appointment. A separate document for a guardianship appointment may seem like a good idea, but this separate writing could easily be lost or overlooked. However, there are in fact some situations where you may want a separate document for guardianship.

The appointment of a guardian for minor children in a will or in another document requires careful consideration. When you die, the guardian’s appointment may be effective more quickly if the appointment is made in a separate writing outside the will, since the appointment can be effective prior to probating the will. While some courts require a guardian appointment in separate writing go through a probate-like verification process, there’s no statutory or case law requirement to do so. Given that situations can change, and timing of death is uncertain, some parents may prefer the probate-like verification process even when the appointed person filing an acceptance may be sufficient. 

A will is not effective until you die, and then the will is admitted to probate. An appointment in a separate writing can use language that’s not contingent on death and can provide added peace of mind that all possible context in which a guardian is needed are covered. Given that a will is a testamentary document, is it effective to appoint a guardian for a minor if you’re not deceased (e.g., incapacitated)? 

You can use both a will and another writing to appoint a guardian for a minor. If you choose to do both, make sure the two methods are coordinated. For example, draft the guardian appointment language in the will to acknowledge the will could state that there is another writing appointing a guardian for minor children and that the list of guardians in the will is for use only if the separate writing can’t be located within a reasonable time after your death. 

Our attorneys are very experienced in assisting in guardianships and estate plans. Feel free to contact any of our estate planning attorneys in Ann Arbor to discuss your questions or contact us to schedule an initial consultation!

Resource: https://www.icle.org