This is one of the hardest estate planning decisions many parents face: Who will you name as the guardian(s) of your children in your will?
As a father, I understand how challenging this is, but it is truly one of the main reasons parents decide to make a will in the first place.
In Rhode Island, the will is where you can formally nominate your guardians, and the probate court is required to appoint your nominated guardian “unless good cause be shown to the contrary.”
When counseling clients on this decision, here are a few of the key factors I like to highlight for Rhode Island parents:
1. Familiarity
The proposed guardian should be someone who is already well-known to the children and who has a warm, established relationship with them. Maintaining emotional and social stability during a time of immense grief is paramount.
2. Age
Clients should select a guardian whose age is relatively close to their own, ensuring they are highly likely to survive the children’s minority. While naming grandparents as guardians is a common initial thought, it runs a significant risk that the grandparents may pass away or suffer from physical or cognitive decline before the children reach adulthood, which could throw the guardianship into turmoil.
3. Location
The physical residence of the guardian is a crucial factor. If the guardian lives in another state, a sudden move will force the children to leave their school, friends, and wider family network. Proximity to the children’s existing community allows them to maintain as much of their daily routine as possible.
4. Guardian vs. Trustee
Sometimes this can be the same person. However, in many cases it makes sense to appoint someone else as trustee due to the different roles.
The guardian can take care of daily parenting, schooling, medical needs, and more. The trustee, who might be someone with more financial acumen, manages the children’s inheritance and oversees the distribution of funds. Of course, you need a trust to have a trustee, and this can be accomplished via a revocable living trust or stand-by testamentary trust within your will.
5. The Divorce Trap
It’s common for clients to name a married couple (e.g., “my sister and brother-in-law”) as joint guardians. However, clients must consider what should happen if that couple divorces, separates, or if one spouse dies. As mentioned here, to avoid legal and administrative disputes, it’s often best practice to nominate a single individual as the primary guardian (rather than a couple), or to explicitly specify in the will who should maintain custody of the children if the co-guardians separate.
6. Naming Successors
Spouses typically name each other as the “primary guardian”. But you should always nominate a line of successor guardians rather than a single successor guardian. Relying on a single backup guardian leaves the children vulnerable if that person’s health, lifestyle, or willingness to serve changes.
7. Values, Lifestyle, and Suitability
This kind of goes back to the first item on the list. Along with choosing someone who the children are familiar and comfortable with, the ideal choice will also align with your parenting style, religious beliefs and educational values.
Bonus tip: In Rhode Island, the court may require a guardian to post a financial bond. The will should explicitly state that the nominated guardians are exempt from furnishing sureties on their fiduciary bond to spare the estate from paying expensive annual insurance premiums.
