We’ve all heard the expression that “you can’t take it with you when you die”; but at least the Illinois Probate Act sets out a “default” guideline as to who inherits your personal property from your estate if you die without a will. Unfortunately no such rule exists governing your most prized possessions – guardianship of your children.
Guardianship estate planning is critical for any parents, regardless of your personal worth. The guardian is the person appointed to care for the well-being of your children, essentially stepping into the roles of Mom and Dad. There are two types of guardianships – guardianship of the estate and guardianship of the person. The guardian of the estate is the person/entity responsible for your child’s financial affairs and management; the guardian of the person is responsible for the child’s care and well being. You can elect to have the same person act as both the guardian of the estate and person; or can choose different guardians for each role. Perhaps you want your brother appointed guardian of the estate, while your sister acts as guardian of the person. Another option is allowing two people to act as joint guardians if the situation is warranted – meaning each will have equal say in the up-bringing of your kids. The various possibilities and reasons are too vast to cover in this article.
Although Courts give considerable deference to who you nominate as guardian(s) of your children in your estate planning documents, a petition and court order is still required to deem them a legal, permanent guardian. Safeguards are in place to ensure that your children have a guardian while the court proceedings are pending. There are essentially four forms of guardianship that you should be aware of:
Short Term Guardian – A short term guardianship is effective upon the date stated in the written document but is only effective, at most, for 60 days. For example, “I appoint John Smith as guardian upon my death…” John Smith could then use this document as legal proof of guardianship of the child(ren) for up to 60 days.
Standby Guardian – The standby guardianship is nominated in the estate documents but unlike the short term guardian, he/she must first be appointed by the court for a temporary period until the permanent guardianship is determined. A standby guardian is not limited to 60 days.
Temporary Guardian – is the temporary guardian of the children. The difference between the temporary and standby guardianship is the fact that the standby was previously nominated by the parents during the estate planning process during their lifetime. That person is merely “standing by” to be either the Temporary and/or Permanent Guardian.
Permanent “Plenary” Guardian – this is the person or persons who will have guardianship over the children until such time that the children turn 18.
As a parent of two young children, I know first-hand the concerns and fears parents have about leaving your children behind. Guardianship provisions in your estate planning documents can help alleviate these concerns by giving you a voice in choosing who will care for your children in the event of your untimely passing.
If you do not have these safeguards already drafted and executed, it could lead to many subsequent problems, such as infighting amongst family members or going so far as the court deciding guardianship, an uncertain outcome. If you are going to drive a car, you will need to have car insurance. The same can be said if you are going to have children, you should have a plan in place to ensure their protection if some tragedy occurs.
To schedule a consultation regarding your case please call the attorneys at Hall & Rustom LLC (309) 699-4691, our office is located on the 3rd floor of the GEM Terrace Building in East Peoria, IL.