VIRGINIA ESTATE PLANNING LAWYER GUIDES ARLINGTON PARENTS IN MAKING GUARDIANSHIP ARRANGEMENTS
Planning for your children’s future in the event of your death
Parents with minor children face many responsibilities in raising them and typically expect to fulfill those responsibilities personally until each child reaches an age that the parents consider to be mature. That expectation will not be realized if both parents die or become incapacitated before the youngest child reaches the age of maturity.
A parent with young children must take steps to protect his or her minor children in the event that the parent dies prematurely. One step a parent should take is to write a will appointing a guardian to exercise legal custody of any minor children following the parent’s death.
Virginia recognizes two types of guardianships of minors:
- Guardianship of the person of the minor – A guardian of the person of a minor normally exercises legal custody over the minor.
- Guardianship of the property of the minor – A guardian of the property of a minor has authority to manage and administer assets belonging to the minor.
It is not advisable for parents of minor children who are preparing wills to include provisions for the appointment of guardians of the property their children. It is more appropriate to use other arrangements, such as trusts, to manage property for minor children.
On the other hand, we advise parents of minor children to include provisions in their wills for the appointment of guardians of the person of their minor children. The following discussion deals with
guardianship of the person of minors under Virginia law.
Testamentary Appointment of Guardian of the Person of a Child
Virginia law allows a parent to designate a person to serve as guardian of a minor child by including a provision in his or her will appointing that person to be the child’s guardian. If a parent dies after signing a will that appoints a guardian for a minor child, it will be necessary for the will to be filed in the circuit court and accepted by the court as the last will and testament. The court’s acceptance of the will is referred to as the probate of the will. The person who is appointed guardian is required to accept the guardianship within six months after the will is probated. A person who accepts the guardianship within that period will be entitled to have legal custody of the minor child unless the minor child has a surviving parent who is a fit and proper person to have custody.
Parents who fail to write wills appointing a guardian for their minor children expose them to unnecessary risks. If no guardian has been appointed for an orphan in the deceased parent’s will, the court has authority to appoint a guardian. Leaving the decision over the choice of a guardian to a court is disadvantageous for the child.
One drawback of court appointment of a guardian is that courts are less able to make appropriate decisions in selecting guardians for minors than the minors’ parents are. A court does not have the depth of knowledge about the needs and preferences of a child that the child’s parents have. A court may also have insufficient information about the proposed guardian. In many cases, courts have appointed unsuitable persons to serve as guardians despite their past misconduct because the courts have been unaware of that misconduct.
Another drawback of allowing a court to appoint a guardian is that it may lead to a contested guardianship proceeding. A contested guardianship proceeding is disadvantageous because it frequently results in the incurrence of substantial expenses including attorney’s fees. In addition, if a child is present in court during hearings in a contested guardianship proceeding, the court room experience may be uncomfortable or emotionally painful for the child.
There is no reason to leave your children’s custody up to a Virginia court when you can choose a guardian for your minor children in a will. The decision of who should raise your children upon your death is not the type of decision that should be taken lightly. Any decision about selecting a guardian for minor children should be carefully considered and effectively implemented.
Estate planning attorney James D. Fife has the knowledge to provide comprehensive advice regarding guardianships of minor children in the estate planning context. He also has the ability to prepare will provisions that will give effect to parents’ selections of guardians.
In some situations, a parent wants to consider the appointment of co-guardians for a minor child or an alternate guardian who can serve if the individual that the parent selects as his or her first preference is unable to serve. In that type of situation, Mr. Fife provides advice to the parent regarding the conditions under which the appointment of co-guardians or an alternate guardian for a child will be effective and prepares a will that provides for the appointment of the co-guardians or alternate guardian chosen by the parent.
Contact us for assistance with guardianship in Northern Virginia.
We can protect your right as a parent to safeguard your children by selecting a guardian in a well designed will. If you have a minor child and you do not yet have a will in place, contact our Northern Virginia office for your peace of mind and your children’s welfare. Call us at 571-421-2756 or contact us online.