Download PDF

I'm embarrassed to admit that my family and I are only now working our way through the great television series, Black-ish. We have found it to be a funny, relatable series that often gives us a view into things outside of our experience and sparks great conversations at home.

When we watched the Season 2 episode "The Leftovers," I could really relate. In this episode, parents Dre and Bow Johnson realize they have not yet named a guardian for their four children and struggle to decide upon the appropriate person to fill the role. The Johnsons are not alone - according to a 2017 caring.com survey, barely over one-third of people with minor children have an estate plan in place, leaving the guardianship of their children completely up to the courts to decide without providing any guidance.

Dre and Bow, like many people, never consulted an experienced estate planning attorney. Had they done so, they may have heard some of the advice I give my clients:

• Don't start by thinking about who would be "as good as you" - as parents, it is difficult to imagine anyone else raising your children. Instead, consider that one person in your family - we all have them - who would want to take the children, but who would just not be right for the job. Then work your way up from there - who would be better than that person?
• If you are considering naming a couple, consider whether or not that is actually what you want. What would you want to have happen if that couple got divorced, or if either one of them died?
• The guardian does not need to be in charge of the money for the children, so you are free to name the person who would provide the best home and care for your children as guardian, and let them work with the person you have named to hold and manage your assets after your death. For example, if you have appropriate life insurance or other assets and a trust in place, the Trustee will be responsible for managing your assets, teaching your children your financial values and distributing the assets to and for your children in accordance with those values.
• If you have strong feelings against a specific person serving as guardian, consider naming a longer list of potential guardians so that the court has a number of your suggestions to consider in case one or more of them are unable to serve.
• If your preferred guardian does not live close to you, consider providing for someone who can step in until the guardian can get to your children. In Massachusetts, a good place to do this is in the emergency guardianship proxy that should be in place for every family with minor children, in addition to the guardianship nominations in the will.

An experienced estate planning attorney can help you through this process and give you confidence that your wishes will be known to the court should something happen to you and your children's other parent.

Do you have guardianship nominations in place for your minor children? How did you decide upon your guardians? If not, what is the biggest obstacle that is holding you back?