A dark and dismal thought for a semi-bright Friday afternoon, I know, but if both you and your spouse or partner unexpectedly pass away while you have minor children, who is in charge? Further, as children cannot inherit any property until they reach the age of majority, who will make sure whatever assets you may have actually get to them at the right time for college or for their amazing business start-up idea?
If a legally enforceable written guardianship appointment is not made in advance in your will or trust documents, the answer to both of these questions is that the very disinterested bureaucracy of the court will decide with no idea what your actual intentions were while you were alive. The court will also require very complex and costly guardianship petitions and hearings to make their own determination for you. Your estate will be forced to pay the costs of these proceedings and a traumatic mess for all involved in an already difficult time will be created.
None of this has to happen, though. Pennsylvania law provides that, “a person competent to make a will, being the sole surviving parent or adopting parent of any unmarried minor child, may appoint a testamentary guardian of the person of such child during his or her minority, or for any shorter period”. 20 Pa.C.S. § 2519(a). Your intentions, absent proper written evidence, are not enough, however. “A person’s wish, not expressed in her will, was not equivalent to a testamentary appointment”. Baccaro Estate, 88 Pa. D. & C. 42 (1953).
The inexpensive creation of a “guardianship of the person” for your children will allow you to decide, in case of the worst, who has primary physical custody. The additional inexpensive creation of a “guardianship of the estate”, in the form of a contingent testamentary trust, will allow you to appoint a separate person to manage your children’s inheritance. These two people will check and balance each other for your children’s benefit.
This all sounds very complicated, but these are fairly simple, customized clauses, that our office will strategically place in a proper Last Will and Testament with Contingent Trust that we recommend for most parents in most cases. Please feel free to give us a call for more information. Enjoy your weekend!