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Will or Trust for guardianship of our kids

Discussion in 'Guardians & Conservators' started by ksp_31, Dec 3, 2022.

  1. ksp_31

    ksp_31 Law Topic Starter New Member

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    My wife and I have been discussing in case something happens to us, who would get custody/guardianship of our kids. Should we create a Will or Trust, and what type for each one. We also want to make sure our assets ($) are protected for our kids future (college, weddings, and future expenses), but if needed provide some financial support "if needed" to the legal guardians.

    Also there are some relatives we would want them to be away from. Can we file any restraining orders, or something related?
     
  2. Tax Counsel

    Tax Counsel Well-Known Member

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    Wills and trusts are ways of passing property to others. They are not vehicles for determining who should be the guardian of kids left without parents. They are not meant as documents for dealing with custody/guardianship of children. That said, a lot of people do express their desire about guardianship of their kids in their will. Even if a court is willing to consider the statement in the will, it is better to do that in a document separate from the will/trust in case the will is determined invalid for some reason. Note that while you may express your wishes for guardianship of the kids, ultimately the court will decide to whom they go based on the best interests of the child. I suggest you see an attorney for help both with a will and/or trust for transferring the stuff you own and for a document expressing your wishes regarding custody/guardianship of the children.
     
    hrforme and Zigner like this.
  3. flyingron

    flyingron Well-Known Member

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    Yep, and you can usually find an attorney that will set up trusts/wills, deal with child guardianship, have durable and medical powers of attorney drawn up, and advance medical directives (living wills) all as a neat package. If you're going to make provisions for being incapacitated/dead, you might as well be all inclusive. We were very lucky to get this done with my mother in law while she was still lucid but heading into alzheimers.
     
  4. ksp_31

    ksp_31 Law Topic Starter New Member

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    If in writing we say we want my cousin to have Gaurdianship, and they get custody after our death, can my parents or another family get custody down the road? Like let's say they have A LOT more financial assets. Can they have a case and get custoday?
     
  5. Zigner

    Zigner Well-Known Member

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    Children aren't property for which ownership can be transferred. You can nominate your cousin for guardianship, and if they are fit it shouldn't be a problem, but if a case can be made that the nominated guardian is not fit for custody, then someone else may get custody. Technically, money doesn't enter in to the "fitness" equation, but the reality is that if an overwhelming amount of resources can be thrown at the effort to overturn your guardianship nomination, then that person with the resources may succeed if your nominated guardian doesn't have the resources to fight it.
     
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  6. justblue

    justblue Well-Known Member

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    Do your children have a close relationship with your cousin? See them often and know them well?
    How about your parents...Do your children know them? Are they close? How old are your parents?

    How old are the children?
     
  7. zddoodah

    zddoodah Well-Known Member

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    Not sure what the part I highlighted means. Should you create a will or trust? Depends in large part on the extent of your assets, and you should consult with a local estate planning attorney. As far as custody of your kids, that is determined by a court. While you can express a preference in a will or trust or any other written document, your preference is not controlling (although, in the absence of a challenge from someone else and/or obvious reasons not to go with the stated preference, courts will typically honor the stated preference).

    No.

    Virtually anything is possible. However, in the unlikely event that both of you die before your kids reach adulthood and a court awards custody to your cousin, the likelihood that the court would later entertain a petition by anyone else to change custody would be very small and would require significant changed circumstances.

    P.S. None of the details of your intrafamily relationships are important for the questions you asked.
     
  8. hrforme

    hrforme Active Member

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    Best advice I got from a lawyer (IANAL) when my kids were little was to pick someone you trust to be the guardian and let them decide at the time who is best suited to actually take care of the kids. That guardian also would be the one to dispense any assets. Because in the end, so many things can change over time. They did suggest we write a letter every year (at least) to them about our current wishes. That way it stayed up to date.

    But we had very little in assets so no money really for anyone to fight over ...
     
  9. leslie82

    leslie82 Well-Known Member

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    Kids aren't property. You can't will them to someone...you can make your wishes known on who you prefer as guardians. But you can set aside a trust for them sure.

    Are these family members currently threatening, harassing or harming you or your kids in any way? If so you can get a protection order but you can't get a protection order just because you don't like someone. You have to have proof of threats, harassment, physical harm...things like that.
     
  10. leslie82

    leslie82 Well-Known Member

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    Yes anyone could file a custody modification at any point if they wanted to. Does that mean they'll get custody? No. They'd have to prove why they are a better fit to have custody than your cousin and prove them unfit.

    But no one can tell you what can happen in a hypothetical situation. Trust me - I get it. I worry about if I die before my kid is 18 and then if her dad tries to get custody or they grant him custody but I doubt it when half her life he's been in prison, rarely pays child support nor visits her. And didn't even show up to the divorce...so I highly doubt he'd get visitaiton if I die or am incapacitated but he probably would get supervised visits. My family would fight like hell to make sure she was safe I know that. But ultimately, if I'm dead or incapcitated, I can't do anything about what happens after that.
     

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