If you have any children under the age of 18, it is important that you at least have a Last Will and Testament (“Will”), including provisions regarding guardianship of your children, should anything happen to you. Legal guardianship provisions for minor children are an extremely important part of estate planning for young families. There are certain provisions for guardianship Nevada parents need to be aware of when making their estate plan.
The basics of a Last Will and Testament
A Last Will and Testament is basically used to make dispositions of property, which do not take place until your death. Another purpose of a Will is to appoint someone to manage your estate and to appoint someone as guardian of your minor children. Without a Will, your property will be distributed to your family, following the laws of intestate succession in your state. Note that intestacy laws have basically remained unchanged for a very long time, and those laws may not take into consideration today’s issues with the modern family (most importantly blended families). Your closest family members usually receive equal shares depending on the law’s pre-determined priority system.
Establishing legal guardianship of minors with your Will
When one spouse or parent dies, the surviving spouse or parent will automatically be the child’s legal guardian unless that person’s parental rights have already been terminated. Should both parents die at the same time, or nearly the same time, any guardians named in a Will would become responsible for the child’s care. A Will must be submitted to probate court, and the probate judge will oversee the entire process, including the approval (or disapproval) of the guardians named in the Will.
Be sure to consider both present and future circumstances
When you are considering who should be named as legal guardian for your children, take into consideration the age, health, location, and general personalities/parenting styles of the potential individuals. You must also recognize that these factors will probably change in the future. For this reason, it is a good idea to select both primary and secondary guardians, should there be anything preventing your primary guardians from serving in that role.
Make sure you have the right short-term guardianship documents
Permanent guardianship in a Will is approved by a court, which may take weeks or even months. Nevada allows parents to appoint short-term guardians to care for minor children for a maximum of six months. This ensures that the children do not have to spend any time in custody (child protective services, foster care, or other) while the permanent guardianship is being approved. In order to protect the children, there must be a separate legal document appointing short-term guardians.
Don’t wait to find the “right” person
One of the common reasons parents put off planning for guardianship of their children is that they are “looking for the right person.” Of course, you want someone who will raise your children with the same values you hold, but finding the perfect fit may not be possible. In fact, it is not very likely. Instead, you need to find someone who has a similar belief system and who is also willing to instill in your children the values you hold. It takes some discussion and some compromise. But you cannot put off guardianship planning simply because you haven’t found the perfect guardian yet. If you wait too late, a judge will make that decision for you. You can always re-execute a new Will, or change the Will, if you decide to change the appointment of guardians.
Make sure the legal guardians will have everything they need
In order to properly care for your children, your guardians will need to have access to financial assets, as well. This can be established a number of ways, but is most effective through a Trust. A Trust may be created during your life (a Living Trust) or upon your death (a Testamentary Trust). Within the Trust, there are a few key things to consider. Who do you want to manage the money (i.e. is the guardian in charge of raising the children also responsible for the money, or do you separate those responsibilities)? Do you want the children to have equal shares regardless of circumstances, or would you like a Common Pot to be available for all of your children until they reach a certain age? Do you create a Living Trust and keep the Trust administration private, or do you create a Testamentary Trust and require judicial oversight of the Trust? Many of these questions are hard to answer on your own, and it is best to discuss these matters with an attorney in doing your estate planning.
Informal statements in a letter or an email are typically not sufficient
Unfortunately, you cannot rely on something as informal as a letter or email to establish your choice for guardian of your minor children. No matter how clear your choice may be spelled out in a letter or email, it is not legally binding on the court. A judge could take that informal statement into consideration, but there could be so many issues of credibility for the judge to wade through, especially if someone challenges the appointment. Basically, if you take the time to choose someone and write it down, why not take the next step of making it official?
What happens if you do not nominate a guardian?
If you do not include guardianship provisions in your Will, the appointment of a legal guardian will be made by the probate court without any input or guidance from the parents. Although it is the judge’s responsibility to ensure the best interests of the child are met, the decision may not coincide with your own wishes. That is why creating an estate plan is the best solution for you and your family.
Attend a FREE Webinar! If you have questions regarding guardianship, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.