Critical Choices if Your Children are Orphaned


Who will take care of your children if they're orphaned? If you fail to make your choices known through your estate plan, the selection will be left to a judge. Therefore, there are some critical decisions to make:
  • Select guardians who share your faith, values, and life priorities, and already have a positive relationship with your children.
  • Make sure your legal plans provide for compensation of the guardians, or at least all legitimate expenses.
  • When selecting a guardian, consider the impact of divorce - will your children face a split guardianship?Obtain permission of the selected guardians before appointing them in your legal instruments.

estate planning - orphans - children - san francisco - palo altoThere are several options for selecting guardians for your children.

OPTION 1: Trusted Family Members or Friends Can Serve as Both Guardians of the “Person” and Guardians of the “Estate”

  • Likely to know the strengths & weaknesses of your heirs
  • Can provide a warm, loving environment where the children can live
  • May not charge much if anything to oversee the inheritance
  • Downside: might be busy / distracted with their own financial responsibilities and not be able to say "no" to irresponsible heirs

OPTION 2: A Professional Fiduciary Can Serve as Guardian of the “Estate”

    A fiduciary is a person or institution legally responsible for the financial affairs of another - and they are held to the highest standards of care and loyalty in this role Downside: A professional fiduciary is NOT likely to know the strengths & weaknesses of your heirs. They likely WILL charge significantly to oversee the inheritance A professional fiduciary won’t raise your child (serve as guardian of the “person”)

OPTION 3: You Can Have the Child Live with Family Member or Trusted Friend, and a Professional Fiduciary Handles the Money

  • A family appointee is selected who knows the strengths & weaknesses of your heirs
  • A professional fiduciary handles the accounting & tax details, and is compensated for the day-to-day management of the inheritance for your heirs. Plus they can play heavy if needed

If the proposed guardian does not live in the United States, the decisions become more complex. For example, you will need a temporary guardian who can care for your children until the proposed guardian can get a flight to the US. The proposed guardian will also need to be prepared to stay in the US for several weeks - even if you’ve nominated a guardian, it takes the court a minimum of 30 - 45 days to “confirm” the nomination, and the guardian will not be able to take the children outside of the US until he’s been confirmed.

Topics:  Child Custody, Estate Planning, Executors, Guardians, Minors

Published In: Family Law Updates, Wills, Trusts, & Estate Planning Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Janet Brewer, Law Offices of Janet L. Brewer | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »


Janet Brewer
Law Offices of Janet L. Brewer

Janet Brewer has practiced California estate, gift-planning, and probate law exclusively since 1991.... View Profile »

Follow Law Offices of Janet L. Brewer:

Reporters on Deadline