As a parent of young children in North Dakota or Minnesota, you have likely considered the difficult question: what would happen to my kids if something happened to me?
While financial matters are important, the most critical part of an estate plan for parents is the designation of a guardian. Making this decision yourself is not merely a suggestion. It is your fundamental right and responsibility.
Guardian of the person vs. guardian of the estate
When you choose a guardian, you are filling two distinct roles. The guardian of the person is the individual who will physically raise your children, making decisions about their daily care, schooling, and upbringing.
However, you should also name a guardian of the estate (or conservator in Minnesota). This person manages your children’s inheritance until they become adults. You can name the same person for both roles, but you do not have to.
What happens if you do not choose one?
If you fail to nominate a guardian in your will, a judge in a North Dakota or Minnesota court will make the decision. While the court must act in the “best interests of the child,” a judge is a stranger to your family, your values, and your specific wishes. This can lead to painful disputes among relatives and may result in a guardianship arrangement you would never have chosen.
What should you consider when choosing?
Selecting a guardian requires careful and practical consideration. A few factors to evaluate include:
Your parenting style, values and beliefs
The person’s age, health and financial stability
Where they live and if your children would have to move
Their existing relationship with your children
A thoughtful estate plan also includes a backup plan. You should nominate a second or even third choice in case your primary choice cannot fulfill the role.
Making your choice legally binding
A simple conversation about your wishes is not legally sufficient. The only way to make your choice effective is to formally nominate the guardian in your last will and testament.
While this is technically a recommendation, courts give a parent’s nomination great weight and will almost always approve your choice unless the person is found to be unfit. If you are a parent of minor children, consider consulting with an experienced estate planning attorney to properly document this critical part of your plan.