In my opinion, there’s one part of your will that is more important than all the others: the guardianship provision. If you have minor children, or might obtain them at some point, it’s very important to tell the court who you want to take care of your children should you die. To me, all the money and assets in the world cannot replace a loving caring home for my child.
What is Guardianship?
Guardianship is the temporary legal procedure for one person to be the caretaker and in charge of another who lacks legal capacity. In this article, we’re talking about your own children and who you would want as guardian for them should you die.
Guardianship can never trump parental rights, so some or all of the parental rights must be stripped away first. Here, the parental rights are removed when you die. However, if your child’s other parent is still alive and has parental rights, the guardianship provision would not be applicable.
Is the Guardianship Provision Binding?
As weird as it sounds, guardianship provisions in your will are not actually binding. However, they carry great weight because the judge typically presumes that you have the best interest of your child in mind when you write the will. It’ll be up to others to convince the judge you didn’t.
Where Do Kids Come From?
This is not about to be a biology lesson, but I include this information because I actually get push back from clients on even including a guardianship provision. They tell me “I don’t have kids, and I never will.” Of course I can easily remove this from their will, but I first have to inform them the cost/benefit of doing so.
Firstly, if the provision remains and they don’t have kids, no problem. The couple paragraphs will never come into play, and there’s no cost.
On the other hand, planned pregnancy isn’t the only way to obtain kids. Here are some scenarios I occasionally bring up:
- Unplanned Pregnancies. The oopsie baby. It happens. They’re already expensive enough, so why add “redoing my will” to the costs.
- Adoption. Maybe you do end up wanting kids and you adopt down the road? My goal is to future proof your will.
- Unplanned Adoption. I know it sounds weird, but it’s happened around me enough I have to include it. I’ve encountered way too many people who have seen a family struggling and work through a way to adopt a child from that family..
- Niece/Nephew Adoption. Then there’s the saddest one. If something happens to your sibling who has kids of their own, you might end up as the legal guardian and then maybe even adopted parents of those children.
Finally, for my male clients, I need to know how positive they are that they don’t have any kids they don’t know about out there.
Between all these reasons, there’s probably one that resonates with my clients. If they are still adamant that I remove it, that’s fine. I’ve done my job.