Choosing a Guardian & a Trustee in Your Will

If you have minor children and get your will done, you will need to name a guardian. In this post we will explain everything you need to know about guardians, and give you advice on how to pick one.

A last will and testament provides for the disposition of all of your property. Often, that means it goes to your children. But what happens if your children are still minors?

And more importantly, what happens to the children themselves? Who do they go to if you pass on?

We are estate planning attorneys in Waldorf, Maryland. We want you to have your estate planning documents in order.

If you have minor children and don’t have a will, then you need to stop right now and make this a priority. You do not want the state or the court system making decisions about who gets your children and who holds your property for them. You want to make those decisions yourself. You can do that in a professionally drafted last will and testament.

You need to choose a guardian and a trustee. These are two totally different jobs. It can be the same person, and usually is, but it does not have to be. You need to think carefully about your personal situation and make the right choices for you and your family.

Good Estate Planning is More than just a Will: Yes, you need a last will & testament. But that only kicks in when you pass away. What if you are disabled?  Proper estate planning requires some other very simple documents. First, you may need to get a Durable Power of Attorney in case you are disabled and need someone else to handle your finances. Second, you should consider getting an Advanced Medical Directive to give someone else the ability and power to make health care decisions for you if you are disabled. Do you need a Living Trust? Click those links to learn more, and visit our Free Legal Guide to Wills & Estate Planning in Maryland to learn everything you need to know about estate planning.

Guardian

The guardian is the person who will have physical and legal custody of your children. You should carefully choose this person, and you should discuss it with them before writing them into your will.

You should try to choose one person as guardian, not a couple. The sad fact is that 50% of marriages end in divorce and you do not want your children to be the subject of someone’s custody battle. So choose one person – not a couple.

Most people choose a family member. If so, name the actual blood relative and leave the spouse or significant other out. Keep in mind the spouse of your actual relative will still live with them and be just as able to take care of them as if they were the named guardian. But if the worst happens to that couple, your children will stay with your blood related family.

If this ruffles any feathers, feel free to blame your attorney. We won’t mind.

Trustee

The trustee is the person who controls your money after you pass away. The trustee will be able to access the bank accounts, pay for bills, pay for college or private school, and generally handle all of your finances until the children are old enough to gain control themselves.

Importantly, the trustee will also be the person who says “no” to a financial request. Sometimes, that is a good thing. If you worry that your guardian may spend all your money too freely, then maybe appointing a different person as trustee makes sense. Again, this all depends on your own personal situation and family dynamics.

Much of the same advice applies to the trustee as the guardian. You will likely give your trustee absolute power to distribute your money to your children, so choose this person wisely as well.

Most people make the guardian and trustee the same person. It is hard to be a guardian if you have no money to pay for things, or if you have to ask the trustee for money every time you need it for the children. You can do it in the right situation, but please realize that you are creating possible conflict.

When do the kids get it?

Lastly, you will need to choose an age at which your children will own the property for themselves. The trust will end at that age, and they get your assets to own in their own name.

The most popular ages are 18, 21 & 25. It is hard to predict how mature your 18 year old will be if that is a long way off. Most people want their children to use their money for college, and not to blow it on a Ferrari, or a trip around the world. If you worry about your money getting blown on things you wouldn’t choose, then you can always delay the date on which your children get your money free from any controls.

But at some age, they will get the legal right to own your money and do with it whatever they want. Until then, your trustee will continue to have the power to pay for things – and to say to paying for other things, like that souped up Ferrari.

Name some Alternates

It is always wise to have a backup plan in any endeavor, and your last will and testament is no different. You should also consider choosing alternate trustees and guardians, in case your first choice for these roles are unable to serve.

In the will we use the phrase “unable or unwilling to serve” when establishing the event upon which you may need an alternate. Your last will and testament will say that IF your first choice is “unable or unwilling to serve” then you choose this different person as an alternate.

This phrasing allows for a wide range of reasons that you might need an alternate. But what you are really worried about is your guardian or trustee dying before you do. This is just an easier way to say that.

And you never know what will happen in the future. So if, for any reason, your first choice for these important jobs is “unable or unwilling” to serve, you will be covered.

Life is unpredictable. We recommend choosing alternates.

Conclusion

This is an important decision for sure, but you don’t want to make that the reason you put this off. If you pass away without a will and you have minor children, it will create chaos for your family and those very children you want to protect. Get your will done, and name your guardians and trustees, as soon as possible.

Want to know more? Discover what you need to know about Wills in Maryland. Click here to see our Free Legal Consumer Guide to Wills and get answers to your questions today. Know your options. Be informed. Protect yourself.

Need an attorney for your will? Please contact us for a consultation today if you need an experienced estate planning lawyer for your will.

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