Leaving Your Child In The Right Hands

The situation is nearly unthinkable: You and your spouse die unexpectedly. So what happens to your kids? However painful the thought is, it makes sense to choose a legal guardian--one who shares your ideas on child-raising--before it's too late. If not, a court will appoint a guardian without you.

As with other estate matters, the starting point is a will. Married couples should be sure to include a provision naming each other as guardian, because such an appointment "is not automatic," says John Trombadore, immediate past chairman of the New Jersey Bar Assn.'s family-law section. But spouses should also appoint an alternate--even two--in case both parents die in the same accident.

Picking a guardian is a matter of common sense. It should be someone you trust and who shares your values and religious beliefs. The person doesn't have to be a family member. Many couples tend to name a grandparent, but that option should be weighed carefully: Even though Grandma is in fine shape when the will is drafted, she may be too old to provide care when the time comes to step into your shoes. Another consideration: Should you keep siblings together or name separate guardians for each?

If you are leaving your kids a large estate, it might make sense to name a team of caretakers: a guardian to handle the child-rearing and a trustee to manage the money.

TALK IT OVER. Never appoint guardians before talking it over with them first. Subjects to discuss include whether they want the job and whether they'll raise the children in accordance with your values. As the years go by, review your decision. Someone who is good with toddlers may not be comfortable with teenagers. And if your children are old enough, get their views on the matter, advises Lawrence Frolik, an estate-law professor at the University of Pittsburgh law school.

Even though you have picked a guardian, the appointment will be reviewed by a judge after you die. While the court must consider the child's interests, the law in most states places a "heavy priority" on the stated preferences of natural parents, says Christopher Wu, executive director of Legal Services for Children in San Francisco.

If you die without selecting any guardian, some states have preference statutes to help the courts decide. The laws specify which relatives to consider--usually grandparents, aunts, and uncles. Courts will also hold a hearing in which others can step forward or file objections to the candidate. Some judges will consult the children. All that, however, can be avoided if you make your wishes known.

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