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Have a Child Under 18?

Did you know that wills are the way to name a guardian for children if you die or become disabled before they reach the age of majority (18)? Although many people think the point of a will is to distribute property and assets, this is not the only thing they can do. In fact, guardianship provisions are the only part of a will that can work while a testator is still living. They are as good as a court hearing directly from you about whom you would want your child(ren) to live with if you cannot care for them.

There are some limitations on naming guardians, of course. First, no one can be made to serve as a guardian (or other fiduciary) if they do not want to or are themselves incapable of acting. This is one of the reasons why it is important to discuss this possibility with the potential guardian before you name them in a will, so you can make sure that they are ready, willing and able to serve if needed. The other is that a court will always retain discretion to appoint a guardian based on the best interests of the child. Note that best interests are not the same thing as what a child might prefer (although hopefully they are in alignment). If a person designated as a guardian is ill or is otherwise unfit to serve (think felony conviction or some other critical issue – perhaps substance abuse problems), a court will not appoint them.

Who Can be a Guardian?

Guardians can be the same people as trustees, although this does not have to be the case. Remember that functions can be assigned to different people based on their capability and aptitudes. Maybe someone is really good with kids but not so great with managing money. Perhaps that person should be the guardian while someone else should be the trustee, responsible for managing the assets you set aside for your children.

Adding Guardianship to a Will

A guardianship provision within a will can also be used to clearly specify the person you would not want to be the guardian of your children. This is most frequently done in the context of a divorce where one parent has not been responsible or very involved in the children’s lives. In Virginia, to ensure that this goal is accomplished, there is very specific language that must be included along with reference to particular cases. Consult a competent attorney to ensure this goal is achieved along with any other provisions related to blended families.

In addition to naming alternate guardians (in case one is not able to serve), the other thing to think about is how to write a will so that it works when children are under 18 but does not have to be re-written when they reach that milestone. Modern wills do this by including what is known as conditional guardianship provisions. Aside from the general discussion of guardianship above, wills can also be used to designate guardians for disabled adults or for children over 18 who have special needs.

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