Estate Planning: Naming Guardians for Your Children & Children’s Trusts

 Posted on December 07, 2022 in Estate Planning

Naming Guardians for Your Children in Your Last Will and Testament

Any experienced estate planning attorney will emphasize the importance of naming guardians for any current or future minor children when drafting your will. It is important to make sure the person (or people) you want to take care of your children in the event that you pass while they are still minors (under the age of 18) so that your wishes are followed. If no legal guardian is specified in your will, this huge decision is left up to strangers (the court).

It is custom that if one parent passes and there is a surviving parent, the surviving parent has the legal right to custody of the children. If possible, it is ideal that both parents are in agreeance of custody of the children should one or both pass while the children our minors. However, it is sometimes the case that both parents cannot agree. In any event, your wishes should be clearly stated in your will, so the court is clear on your wishes.   

What is Legal Guardianship?

A guardian is a person other than a parent of the child that is in a legal arrangement to take custody and raise another person’s child.

What Happens if I Pass Away and I Have Not Named a Guardian For My Children?

In this situation, a person who is wanting legal custody of the children would file a petition with the court for legal guardianship. There are no rules for who can file a petition, meaning it does not have to be a family member, it could be a close family friend or any other person with a connection to the children.

Once a petition for guardianship is filed, a judge will determine who should be awarded custody of the children. If there is enough information in the petition or the petitioner explains that it would be in the best interests of the child, the judge will award that person guardianship. However, if there is not enough evidence to show that this would be the best choice for the children or if another person objects, the process will be drawn out. The judge will need to determine what is the safest choice for the children, ensuring that this decision is in their best interests. This can be an emotional and costly process for everyone involved.

Something to consider if you are reading this article and you do not have a guardian chosen in your will, is whether a certain person or people come to mind that you would feel comfortable choosing as guardian over your children? Would the other parent of the children agree with choosing that person? You should also consider whether anyone would contest against that person if they were to petition for guardianship and whether a judge would be able to make the determination that this person is best fit for the role. The best thing you could do to prepare for this scenario is to have a guardian already determined in your legal, valid will to avoid this stressful process in what would already be an emotional time for your children and family. Further, doing so would ensure that your wishes are met, and it is not a stranger that has the power to make this decision for you.

Estate Planning Attorneys for Young Parents Serving Naperville, Lisle, Plainfield, Oswego, and Kendall County

What Should I Consider When Choosing Guardians For My Children?

Deciding who you want to be named as guardian of your children should something happen to you is not a decision to be taken lightly. It is important to be sure that this person is up to the task and that you trust this person to love and raise your children in a way that you would want them to. You want to consider someone for this role that not only is close with your children but shares your core values on the most important parenting topics. For example, if religion is important to you, you would want to choose someone who would instill the same religious values in your children as you would yourself. The same goes for whether your children participate in extracurricular activities and what those activities would be. In essence, you want to select a person who would raise your children to have the same values and opportunities that they would gain from you.

Additionally, you should consider updating your guardian language every couple of years. The age of your children when deciding who to name as their legal guardian plays a key role. The person who you might want to become guardian when your children are toddlers may not be the same as who you would choose when they are teenagers. People and situations change all the time and it doesn’t have to be the result a bad falling out or another negative reason why you would choose someone else as your children grow, for example, the reason could simply be that, that person moved to another area of the country and you want your children to remain in the area you are living in.

Providing for your Children Through A Children’s Trust

What is a Children’s Trust?

A children’s trust is a sub-trust located in your living trust. A children’s trust is NOT a replacement for naming a guardian in your will, but it is a terrific addition in your estate planning process to further provide for your minor children if something were to happen to you. You cannot use a children’s trust to name a legal guardian, but instead this type of trust allows you to assign a trustee that will manage and hold property until your children a certain age (what age is determined by you in the terms of the trust) or if you were to pass away. The terms of the trust will specify when and how funds from the trust are to be distributed.

A children’s trust is irrevocable, and the children would not have access to change or remove the property until they reached the specified age, or a named event takes place (for example, if you were to pass away and the terms of the trust called for distribution of funds when this happens). Further, the property held in the children’s trust is separate from the rest of your estate. It is most common that a child will receive distributions from the trust when they reach the age named in the terms or when the creator of the trust passes away.

One major benefit of a children’s trust is that is protects the named property (commonly an inheritance) from creditors of the beneficiary’s estate. This includes typical debt creditors, but the trust also protects from their former spouse if, for example, the beneficiary was to go through a divorce.

Children’s Trust Attorneys Serving Kendall County, Will County, and DuPage County

Advancements from the Children’s Trust

While typically the beneficiary of your children’s trust is not able to access any funds until they reach the specified age, you can allow for certain exceptions (called advancements). It is common for the creator of the trust to create a sub-section specifying that if certain requirements are met, the trustee of the children’s trust has the discretion to distribute funds before the beneficiary reaches the named age. Common reasons for advancements include permitting a child to enter or engage in a business or profession, to purchase a personal residence, to pay the expenses of a child’s first wedding, to pay for a trade school or college education, or

to pay for any event or circumstance, which the trustee believes requires an advancement, including healthcare emergencies.

Experienced and Reputable Estate Planning Attorneys Serving Oswego, Aurora, Montgomery and Kendall County, Illinois

Estate planning is strongly recommended for everyone. Without a proper plan in place, the process of settling a person’s estate after they die can be emotional, costly, and overwhelming for the loved ones that are tasked with doing so. Planning ahead of time can help protect beneficiaries of your property, reduce the amount of taxes taken by the IRS when transferring assets, and helps to eliminate family disputes that can arise during the distribution of an estate. Hiring an effective and experienced estate planning attorney is critical so that you know you are making the best decision for yourself and your family and that it is being done properly, according to the law. At Peace of Mind Asset Protection, LLC, we have the proper knowledge and experience to assist with the best estate planning option for you. Contact us today at 630-882-2467.