One of the most upsetting and scary questions for parents with minor children is: Who will take care of my child if I die? There are many deeply personal and possibly uncomfortable questions you may need to consider when making this decision, but you do not need to make the decision alone. A good estate planning attorney will be able to discuss important factors to consider when making a choice about who will take care of your children in your absence and a free consult is one click away:
Who makes the decision about who takes care of my children after I die?
If a minor child is left without either biological parent, then the Court will make the final decision about who will care for your child. It is your job to give the Court the best information you have regarding the right person for the job through a nomination of guardian clause in a properly executed Will. Without a parent’s nomination of guardian documented in a properly executed estate planning document the Court will have to choose without your input. This leaves the chance that someone you would never have wanted to raise your child petitioning for guardianship successfully. Anyone with a little knowledge would be able to visit the local Court’s website where directions for filing for guardianship of a minor are easily available and with e-filing is a click away. http://www.courts.state.nh.us/nh-e-court-project/instructions/038eGdnmin-estate.pdf. Although e-filing is a simple process that can be done at your home computer, anyone who petitions for guardianship will most certainly need to show up at the appropriate Court to complete the process of obtaining guardianship. The Hillsborough Probate Court is located right down the road from our office on Spring Street in Nashua.
How do I choose a guardian to nominate?
There are many important factors to consider when picking someone else to raise your children in your absence.
- If you are married and only share children with each other, you may want to come to a decision together; however you can list different guardians in each of your Wills if you cannot come to the same conclusion.
- If you are separated or divorced from the biological parent of your child then the Court will automatically presume that parent to be the guardian of your child. This can be a hard pill to swallow for some parents, but absent extremely serious issues such as significant criminal activity, debilitating drug or mental issues, or a history of abuse, it is difficult to overcome this statutory presumption. See http://www.gencourt.state.nh.us/rsa/html/XLIV/463/463-3.htm which is the statute regarding this presumption. If a step-parent has become the de facto parent of a child and the biological parent and spouse dies, that step-parent will have a very difficult battle in Court overcoming this statutory presumption. Having a carefully drafted nomination clause that includes extra information and/or an attached letter or affidavit describing the reasons for your nomination choice may help get your child to obtain the best guardian.
That is just the beginning of how to decide on a choice of nominee for guardian of your children. There are many other factors to consider regardless of your marital status, such as the relationship your child has with the nominee, the financial status of the nominee, the physical status of the nominee (i.e. can they physically care for your child?), do the nominees have other children, and a number of other issues that are dependent on your own personal family dynamic?
You may also want to consider separating the function of guardian of your child’s person and guardian of your child’s estate. If you feel strongly that a particular person would do a great job parenting your child but would maybe handle the money you have left behind for them poorly, you can assign someone else to take care of the “estate” of your child separate from the their “person.” Although this may be some added work for the people involved, it may be the overall right choice for you and your child.
Will the Court honor my choice of guardian?
It is likely if you have indicated a preference for a guardian the Court will honor your nomination. New Hampshire is one of about half the states in the nation who consider a Will’s guardianship non-binding, which means they can choose not to honor your nomination. In about half of the rest of the nation a Court has no discretion to ignore a parent’s choice of guardian in their Will. In those states, the Court will appoint the parent’s choice without the benefit of some protocols available here in New Hampshire. In New Hampshire the Court automatically requires a criminal record check as part of the petition process as well as the signing off by the petitioner (for guardian) for a release to DCYF to release any records regarding the petitioner. Also, similar to a divorce, if a child is mature, in this case 14, the Court will consider the child’s preference when making a decision.
How do I nominate a guardian?
In order to properly nominate a guardian you need to properly execute a valid Will indicating your choice of nominee. Our estate planning attorneys will take the time to get to know you and your particular situation in order to give you the best advice as to a good choice of guardian nominee. If you would like to read a more in depth article regarding factors for picking a guardian a great article can be found here: https://www.nhbar.org/publications/display-journal-issue.asp?id=350.
We serve the Greater Nashua area and are here to help. If you are in need of a Will or a Trust in order to nominate a guardian for your children and would like to meet with one of our experienced attorneys, please click here to call us today at (603) 943-5647.