A wills lawyer understands that determining who becomes the guardian of a child in the unfortunate event that their parents pass away is an important decision. While parents have the right to make such decisions during their estate planning process, not everyone makes these preparations, and that leaves the decision of who raises the children up to the court.
How the Judge Chooses a Guardian
Every state has its own probate laws, but generally, these laws provide considerable freedom to judges in choosing who assumes guardianship of a minor, although the laws do place some general restrictions on the court. The guardian chosen must be over 18, a resident of the United States, and of sound mind. In most states, the law also says that the judge may not appoint as guardian any person who has been convicted of a felony, unless, after weighing the nature and date of the offense, the judge decides that it is still in the minor’s best interests to appoint them as guardian. The act often repeats that phrase, “the minor’s best interests,” stating that it should guide the judge’s decisions as to who assumes the role of guardian.
The procedure for the choice of guardian starts with the notification of interested persons, usually close family members, that the court will appoint a guardian. People may then petition the court to act as guardian for the minor, and the court will weigh the evidence and use its judgment to try to determine who can best raise the child. Minors over the age of 14 may also have the option to nominate their own guardian, subject to review by the court. While these proceedings can often go smoothly and amicably, they can also be more acrimonious, depending on the family relationships involved.
How to Avoid the Proceedings
In order to avoid a drawn-out court battle, parents can take control of the situation. State laws give parents the opportunity to name a guardian during their lifetime either in their will or in a separate document. While the court still reviews this choice, the parents get much more control over their child’s future if they appoint a guardian. Rather than making the court guess who would best raise the child, it can take the parents’ preferences into account, only overruling them if it finds “good cause” that the parents’ appointment would not be in the minor’s best interest.
Contact an Estate Planning Law Firm Today
While everyone should have an estate plan, it is especially critical to have one in place when you have children. If you would like to learn more about wills and estate planning, make sure you speak with a lawyer who is skilled and knowledgeable in estate law. Call an experienced attorney, like a Knoxville, TN wills lawyer from a law firm like Carpenter & Lewis PLLC.