Question: My wife and I are in our mid-forties. We have two children ages 10 and 13. Should anything happen to my wife and I, how can I ensure that my sister is given legal custody of my children?
Answer: No matter how young you are, if you have minor children, it is a good idea to establish an Estate Plan which includes a designation of a guardian for them in the event that both you and your spouse pass away.
Typically, we advise our clients to name guardians for their minor children in their Last Will and Testament. Through your Wills, you and your wife have the ability to designate both a guardian of the person and a guardian of the property for your children. The person you wish to serve as guardian of the person for your children will be responsible for their everyday care. In designating your sister, she would be responsible for providing your children with food, shelter, clothing as well as making decisions about their education, medical care, and religious instruction. The person appointed as the property guardian for your children will have the responsibility of the overseeing and managing of the monies and/or property that is left to your children. You can designate the same person or people to serve in both capacities. You and your wife should also consider designating successor guardians for your children, in the event that the primary designee (your sister) predeceases or cannot care for your children.
If both you and your wife were to pass away, it would be up to the Surrogate Court to formally appoint a guardian for your children in accordance with Article 17 of the Surrogate Court Procedure Act. In choosing a guardian, you should be sure to consider who is most suitable for your children. Once a minor child reaches the age of fourteen, the Court will grant them great deference and appoint a guardian based on what is in their best interest taking their preference into account.
Once you choose a Guardian you should inform them of your choice and make sure that they are willing to act in that capacity should the need arise. Make sure that the guardian(s) knows that they do not have authority to act as guardian until they are formally appointed by the Court and familiarize them with the steps they will have to take in order to be appointed. Your designees should know where to find your original Wills, as they will have to file them with the Surrogate’s Court within three months of your death. If they fail to do this, the court presumes they have renounced their appointment.
Another option available through the Surrogate’s Court Procedure Act, is the ability to designate a Standby Guardian for minor children through the execution of a document called a Designation of Standby Guardian. By signing this document, you can designate and authorize the appointment of a guardian who will take over the care of your children in the event of your physical incapacity, mental incapacity, or death. From the time your designated guardian begins acting, they have sixty days to petition to Surrogate’s Court for appointment as legal guardian of your children. The Designation of Standby Guardian document is typically executed when the children’s only parent is seriously ill or in a dangerous line of work, such as the military.
Planning for the care of your children should unquestionably be part of your Estate Plan. An experienced estate planning attorney can aid you in creating and executing Estate Planning documents necessary to ensure that the wishes you have for the care of your children are carried out upon the death or incapacity of you and your wife. Learn everything you need to know about estate planning for parents of minor children or download our guide.