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One of the most important estate planning considerations for parents is who will care for their minor children in case of the parents’ untimely deaths. Indeed, for many parents, appointing custodians for their children will be the sole reason they undertake any estate planning at all at that relatively early stage in their lives. There are numerous other issues parents will agonize over related to how the custodians will raise their children in their absence.
For example:

Parents should address these questions and others in a legally and financially sound estate plan which includes an appointment of a guardian and custodian for their minor child in a will. A guardian is responsible for the child’s property. A custodian is responsible for the care of the child. The same person may or may not be appointed to both roles.

An appointment of a guardian and custodian is permitted by statute but is effective only for 90 days after death. For permanent appointment as guardian and custodian, application must be made to the court. The appointment in the will should be made because it is a very strong evidence of the deceased parents’ confidence in the chosen guardians and custodians. It is also very helpful for parents to write a memorandum outside the will which says why the named people are appropriate choices and gives guidance regarding the care of the children. Such a memorandum is not legally binding.

One should bear in mind that an appointment of a guardian and custodian in a will is not effective without the consent of the person appointed.

Download the PDF: Concepts Newsletter – Summer 2010

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