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When Should Parents Include Guardianship Provisions in Their Estate Plans?

October 16, 2020 | Posted In Wills |

As a parent with young children, one of the primary purposes of preparing an estate plan is to ensure that your children will have everything they need (to the extent that you can provide it) in your absence. While this is a concern that we all hope will never come to fruition, it is important to have a plan if the unthinkable happens.

While most people are familiar with the basic financial and property-related aspects of estate planning, far fewer people are familiar with the legal concept of guardianship. But, as a parent with young children, including guardianship provisions in your estate plan is critical to ensure that your children will receive the loving care they need and deserve should you no longer be available to provide it.

What is Guardianship?

Guardianship is a legal relationship in which an adult (the “guardian”) takes responsibility for ensuring the financial, emotional and physical wellbeing of a child (the “ward”). Unlike adoption, with guardianship, a guardian does not become the ward’s legal parent. However, in the context of a guardian serving in the parents’ absence, the guardian assumes substantially all parenting responsibilities, and the child lives with – and relies upon – the guardian on a day-to-day basis.

Should All Parents Include Guardianship Provisions in Their Estate Plans?

While it is difficult to say that one legal solution will work for everyone, in the vast majority of cases, parents who have minor children (under the age of 18 in New Jersey) will be well-advised to include guardianship provisions in their estate plans. Without a pre-appointed guardian, one will need to be appointed through the probate process.

The probate process takes time (during which the children may be placed in temporary living arrangements). The judge will determine the outcome based upon New Jersey law and the information submitted to the probate court. Appointing a guardian in your estate plan avoids these issues and allows parents to decide who will care for their children.

What are Some of the Key Aspects of Guardianship for Estate Planning Purposes?

When appointing a guardian in your estate plan, what are some of the key issues you will need to address? Some of the primary considerations include:

  • Who will be your children’s guardian? Of course, one of the primary considerations is who will serve as your children’s guardian. This is not a decision to be made lightly, and you will want to ensure that the person you choose is willing and able to assume responsibility if necessary.
  • What guidance will you provide to your children’s guardian? When establishing guardianship provisions in your estate plan, you can generally provide as much or as little guidance to your chosen guardian as you desire.
  • Do you want to provide your chosen guardian with financial support? Finally, in addition to leaving assets to your children (possibly in a revocable trust), do you want to provide financial support to your chosen guardian as well? This is an option that some parents choose, although it is not required.

Discuss Your Estate Plan with an Attorney at Helmer, Conley & Kasselman, P.A.

If you would like to discuss your estate planning needs with one of our attorneys, we encourage you to get in touch. To schedule a confidential consultation with a New Jersey estate planning attorney at Helmer, Conley & Kasselman, P.A., please call 877-435-6371 or contact us online today.

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