Will Your Evil Sister-in-Law Raise Your Children?

You may be surprised to find some of the most important parts of an estate plan have nothing to do with money. Planning includes naming who is in control of everything you own and everything you are responsible for. This means your parental rights over your children are also something that should be handled with your plan.

Many parents are familiar with how this works, but just as review: until your children reach the age of majority (age 18 years in California) or are Court emancipated, they do not have the right to sign contracts, open bank accounts, or make medical decisions. Until then, the minor’s rights are controlled by their parent or Guardian.

A Guardian is a Court appointed adult who is accountable for managing the child’s living situation and assets (including government benefits available for the child). Technically, the Guardian of the Estate (who manages money) and Guardian of the Person (who manages living situation) are not required to be the same person. In special circumstances, you may see these jobs separated, but generally a single person is appointed by the Court to take both jobs.

The Court must be involved with appointing the Guardian of a child who has lost a parent (or if the parent is unavailable to act for some reason). There are default laws for the Court to use to decide who gets to take the job. This rule is a list of relatives of the natural parents. The highest person on the list who asks to take the job is normally given it after a thorough investigation and hearing any objections from other relatives. Thus, if you don’t name your preferred guardians, there is a long list of relatives of natural parents (including your favorite in-law) who may end up as Guardian.

In California, the place to name your Guardians is in your will. Even if you have a trust, having a “pour-over” will can be important for many reasons, especially to name your preferred Guardians. Keeping your list of Guardians updated may change more often than other decisions, so you can know just changing this is a very small update that only requires changing the will. While it is necessary to vet your choices carefully, you can also feel safe that the job is not required, and relieving themselves of the responsibility to let your next named person act is as easy as a signed one-page document.

If you have already done a comprehensive estate plan, then you have already handled this. If you are a parent or planning on being a parent, deciding to create an estate plan can be for purposes beyond just yourself.