Estate Planning for Parents: How to Use Your Will to Name a Guardian
Parents need to set up a comprehensive, well-structured estate plan. One of the most important estate planning tasks for parents is to name a guardian for the child(ren). A guardian can take responsibility for a minor in the unthinkable event that something happens to the parent(s). Here, our New Jersey estate planning attorney for parents discusses the key things to know about using your will to name a guardian for a minor child.
What is Guardianship in the Context of Estate Planning?
As a starting point, parents in New Jersey should understand what a guardianship is in this context. A guardianship refers to the legal appointment of a trusted person who will assume the responsibility of raising your minor children if you pass away or become incapacitated. In New Jersey, they are called a guardian of the person. They have the authority to make decisions about your child’s care, education, and general well-being.
Note: A minor child needs a guardian. Without a designated guardian, the court must decide who will care for your children if you or your spouse/co-parent is not around to do so.
You Should Name a Guardian in Your Will
As a general rule, a will is the most effective way to legally document your choice of guardian. In New Jersey, the court gives serious weight to a parent’s nomination of a guardian in a valid will. If both parents are deceased or unable to serve, the court will often honor the designation unless it is found to be contrary to the child’s best interests.
How to Legally Name a Guardian in Your Will
To name a guardian in your will, you must clearly state your selection and include any backup choices in case your primary guardian is unable or unwilling to serve. Your will must be properly executed under New Jersey law, which typically requires your signature and the presence of two witnesses. As a best practice, you may want to include a letter explaining your decision. While not required by New Jersey state law, that type of letter can help clarify your intentions and support your choice if it is ever challenged.
Communication is Key: You should discuss your choice with the person you are naming to make sure they are willing to take on the role.
Parents Should Align their Estate Plan
Whether married, partnered, or separated, parents of young kids or teenagers should ensure that they are on the same page when it comes to guardianship. It is best practice for both parents to coordinate their wills and name the same individual as guardian. Conflicting nominations between parents can create confusion. There can be a serious legal dispute, especially if both die simultaneously or close in time. If only one parent dies, the surviving parent usually retains full custody rights. They will be in the guardian. However, if both pass away, courts will look to the wills of both parents to determine their wishes. Aligning your documents helps present a unified plan.
Contact Our New Jersey Estate Planning Lawyer for Parents Today
At Poulos LoPiccolo PC, our New Jersey estate planning attorney works closely with parents to help them find the best solution. If you are a parent with any questions about naming a guardian for your minor child, we are here to help. Please do not hesitate to contact us for a confidential consultation. We provide estate planning services throughout New Jersey.
