Q: I have a Last Will and Testament which states who should become the guardian of my young children if my husband and I are both deceased, but I have heard that probate can be a long and drawn out proceeding. Is there something I can do to protect my children in an emergency situation? How do I ensure that my children will go to my designated guardian?
A: A Last Will and Testament is the document that nominates a Guardian of the Person for your minor children when you die. If you die without a Will, it requires a two-step process in order to administrate your estate: First, someone needs to petition the Guardianship part of the Surrogate’s Court to be appointed Guardian, and then that person or another person with standing can petition to be appointed the Administrator of your Estate (it is usually the Guardian of the Person). The person petitioning to be Guardian of the person might not be the person you would have chosen if you had properly completed the right documents.
A Guardian ad litem will likely be appointed to protect the interests of the minor child in an intestacy situation. The Guardian of the person would also need to account for any assets that come into the Guardianship estate, and would need to petition the Guardianship part to withdraw funds for the benefit of the child.
In contrast, if you nominate a guardian in your Will, the administration of the estate for the benefit of your children is somewhat smoother. First, the nomination is just that: a nomination. Ordinarily the Court defers to the parents’ nomination, but can decline to appoint that person if the person is not fit to serve as Guardian or in a fiduciary capacity, either by reason of domestic violence, bankruptcy, or conviction of a felony, among other things. This is why it’s important to name successor Guardians. In addition, the person you nominate might decline to serve.
The second role to consider is the Minor’s Trustee. This is effectively the “Guardian of the Property” – the person or persons who will manage the money for the benefit of your child or children, and distribute assets pursuant to the terms of any minor’s trust in your Will. They would also be responsible for making payments for the benefit of the child, either to the Guardian or directly to a third-party provider.
Some people wish to have the Guardian be the same person as the Minor’s Trustee. This is a personal choice that depends on the dynamic of the persons whom you wish to nominate. It is often a good idea to have a co-trustee serve if the Guardian will be a trustee. The co-trustee is a good second set of eyes to help protected against mistakes or, even worse, someone who improperly uses assets, whether intentionally or negligently.
We also prepare for our clients a document known as a “Designation of Standby Guardian”. Another similar document is a designation of a “Person in Parental Relations.” This is effectively a power of attorney for your child, empowering someone to make decisions for your child in your absence, or if you are incapacitated or cannot be reached, or even in the event of your death until a permanent Guardian can be appointed. It does not necessarily allow someone to access your assets for the benefit of a child; that can only be done by a Power of Attorney that you execute appointing someone to handle your assets under certain circumstances.
With respect to a Designation of Standby Guardian, in the event of your incapacity or death, the designated person can act immediately to take care of your minor children’s personal and financial needs. That person must then file a petition for Guardianship in the Surrogate’s Court within sixty days of acting as the Standby Guardian.
The proceeding for appointment of Guardian can be brought by any person who has an interest, or by the child him or herself if he or she over the age of fourteen years old. Notice of the proceeding must be given to the person with whom the minor resides at that time regardless of relationship, the nearest adult family members who live in the State of New York, and any other relatives the Court determines, whether or not they are within the State. Make sure your appointed Standby Guardian has all that information. You may include an informational sheet with the document that you can update when necessary, or make sure your attorney has the information. It is also helpful to have available a copy of the minor child’s birth certificate and any relevant documents such as adoption papers or medical information.
The Court determines the appointment of Guardian based on the “best interest of the child” standard and the designated Guardian by the parent is important in making such a decision. This is especially important if who you choose to take care of your minor children are not family members, but instead may be a close family friend. Don’t allow the Court to make the decision for you, make your choice known and execute a Designation of Standby Guardian to help protect your minor children.
An estate planning attorney can help you identify a proper fiduciary and prepare these documents. By preparing and executing these documents, it can save your family time and expense in emergency situations, and help streamline the process to make it as smooth as possible.