Shawna Murray Law


Estate Planning Blog

Who is going to take care of my kids?

In California, there are two types of guardians – a guardian of the person and a guardian of the estate. Guardians of the person are appointed to take care of a child whose parents can no longer do so. A guardian of the person (or as I like to refer to them, “guardian of the child”) is only appointed if both parents are unable to care for their children. The guardian of the child is going to “step into the shoes” of the parents and raise the child. This is the person who will have custody of your child and take care of your child until age eighteen. Any interested party can file a petition in the probate court to become appointed as guardian of the children.

On the other hand, a guardian of the estate is the guardian and fiduciary of the minor child's money and other assets if the parents do not have an estate plan. The guardian of the estate can be the same person as the guardian of the minor or there can be two different individuals, a different person for each job. Anyone wishing to be a guardian of the estate can nominate themselves by filing a petition in the probate court. If no estate planning documents exist, California law will determine how the money is spent and a judge will oversee the person appointed to be the guardian of the estate. To top it off, the child will inherit the money at age eighteen.

Guardian of the Person – Guardian of the Child – Appoint one now.

I know it's impossible to imagine. Thinking about someone else raising your children is more than depressing. It is almost impossible to imagine and probably prevents a lot of parents from doing any estate planning. And yes, the chance of both parents dying before their children are adults is probably very small...but, sadly, it does occasionally happen. So, if you don't name a guardian for your minor children, a probate court judge will determine who raises your children – without knowing your thoughts and opinions.

Without a guardian of the person nomination from the parents, the judge may decide that a relative that you detest gets to raise your child or that a foster family is the best choice. This is because judges are looking out for the best interests of the children when they appoint a guardian. To the court, the person who looks best on paper is often the person who appears to be the best choice for a guardian. If an inheritance is involved (for example, your life savings or life insurance proceeds), family members have a tendency to fight for custody. On the other hand, if no one steps up, your child will go into foster care. But, if you have chosen a guardian, judges will give your choice considerable weight in their decision and in most cases, will support your choice.

Parents who nominate a guardian have already considered what is in the child's best interest. While no one can replace you, the person that you chose can probably muddle through pretty well. Of course, this guardian has to take on a huge amount of responsibility. Judges make sure that your child's guardian understands their responsibilities and makes the guardian sign a five page, single-spaced list of responsibilities during the court proceedings. Becoming a guardian is a big responsibility and that is why I recommend that you ask the potential guardian for consent during the estate planning process. You would not want your nominee to decide that they cannot do it when it is too late for you to do anything about that. Also, I recommend that you have a back-up nomination or two in mind, to just be on the safe side.

If you wish to read more information about which factors you might consider when picking a nominee for the guardians of your children, you can click here to read a blog post that goes into more detail about how to decide. 

Who's in Charge of the Money?

Ideally, you have put plans in place to take care of your family if something should happen to you and you are not around to provide for them. Perhaps you have life insurance, disability insurance, or substantial savings? Regardless, you will need to leave enough money to provide for your children while under the care of a guardian. I suspect that you would not want to make raising your child a financial burden for the guardian of the children. Better still, if you have planned well, your candidate's lack of finances will not be part of the deciding factor that the judge uses to appoint your children's guardian.

Since a guardian of the estate is in charge of the money, as mentioned previously, this can be a different person than the guardian of the children. Here are some factors to be considered:

  • Naming a separate person to handle the child's inheritance can be a good idea. If you have a Trust, the successor trustee can oversee the money and provide for your child according to your wishes per the terms of your Trust.

  • However, having the same person raise the child and handle the child's money can make things simpler because the guardian of the child would not have to ask someone else for money. You will want to consider how the guardian of the child and the trustee get along.

  • You will also want to consider whether the best person to raise the child may not be the best person to handle the child's money. Some people are better with money than others. Some may forget that it is not their money. Or it may be tempting for them to use this money for their own purposes or to “borrow” the money “temporarily” and then become unable to replace it. 

  • Having a court-appointed Guardian of the Estate is rarely the best choice because there will be additional expenses while the court oversees the accounting of the money and puts specific limitations on the use of funds. If the parents died intestate, the child will be given control of the money at age 18. Most parents agree that an inheritance at age 18 is a waste of money, since it is likely to all be spent before the child's next birthday. 

Compromise Will Likely be Necessary 

Naming a guardian for my children was next to impossible – but someone is better than a custody fight or no one stepping up. It is a little easier to pick someone knowing that the chance this person would ever have to be my children's guardian is a very small chance. Still, I took comfort knowing that I was being a very responsible parent by nominating a guardian or two because if my children were ever in such a situation, they would be prepared. Since I know that no one loves my children as much as me, I made the necessary compromises and picked a nominee (plus a back-up) whom I believe will do the best they can.

Let's Start A Conversation

Despite the difficulty here, please don't let that stop you. We can talk this through and legally document your wishes. Plus, you can always change your mind and select a different guardian anytime you'd like. But, you are a parent and frequently the job is not easy. I get it, believe me! So, let's do this together. Call the office now for an appointment and we'll get your children the protection they need.