Sometimes young adults do not think they need to do estate planning. A common mindset is “I’m in good health and I’m young, so why do I need to do any estate planning?” For those persons with minor children, this is a very dangerous and uninformed outlook. If both parents die leaving minor children, the state decides who will become the legal guardian of your minor children. This means that a judge who knows nothing about you, your children or your family, determines who will care for and raise your children. If you take no action in advance, you will have no say in the outcome.
You should have a Last Will and Testament or a Living Trust, or both, in which you specifically name the person you wish to serve as guardian of your minor children. In fact, it is advisable to name multiple persons (in order of preference) so that if one person cannot or will not serve, you have back-up persons appointed. Most times, your designation of guardian will be the person appointed to take legal custody of your children. In addition, designating a guardian will allow the person designated to act as the temporary guardian until the court decides on the permanent appointment. Imagine if you and your spouse died suddenly in an auto accident. It may take some time for a court to determine a permanent guardian. However, if you have a guardian designated in your Will or Trust, that person will likely be the person to take immediate custody of the children rather than the children ending up in the foster care system. You can also make sure that the person appointed has the values and parenting style you would want for your children.
About ten years ago, my daughter became friends with a girl whose parents were killed in a tragic accident. There were three minor children at the time. The parents had no Will in place. The children ultimtely got split among family members, with one child going to one aunt in another state and the other two going to a different aunt. Needless to say, that was probably not what the deceased parents would have wanted for their family! If the parents had designated a guardian, the result likely would have been different.
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