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CHILD GUARDIANSHIP: Can I Use a Last Will and Testament to Name a Person as Legal Guardian?

As a good parent, you want to make certain your children are raised well should your life end unexpectedly. Thus, many parents look to provide instructions for guardianship of their children through their Last Will and Testament, to provide both financial security and parental-type supervision for their children should they die.

But a Last Will & Testament cannot create a "legal" guardianship, and never can. Only a COURT can order the appointment of a guardian over another person, including minor children.

When one parent/spouse dies, the other parent/spouse continues to be the "guardian" of the children (except in the most extraordinary of circumstances). Should the second parent/spouse die, a provision in a Last Will & Testament suggesting that person "X" be named as guardian can be looked upon by the appropriate family court or probate court as guidance when creating a guardianship for the minor children. BUT NO DOCUMENT CAN BE CREATED PRIOR TO DEATH THAT WOULD OFFICIALLY OR LEGALLY "APPOINT" A GUARDIAN FOR MINOR CHILDREN.

Rest assured, the courts always gives great weight to the person suggested in the parents' Last Will & Testament, since the parents usually have the "best interest of the child" in mind when suggesting such a guardian.

But no suggestion made by the parents is binding upon the court; rather, it is a suggestion that is given the appropriate weight by the court when making a decision regarding the appointment of a guardian via court order.

The Last Will & Testament documents created by companies like Standard Legal contain the language suggesting a guardian for the children, should both parents die. (Also, the Pour-Over Will included in the Living Trust documents contain provisions that suggest guardianship and permit parents to provide financially for their children should the parents die when the children are minors.)

A Last Will and Testament does not truly create guardianship, but it is the best option available to parents to persuade the court of their choice.


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