This story illustrates the risk that your children face if you haven't formally nominated guardians for them.
A guardian is a person you nominate to raise your children if something were to happen to you and your spouse. As you'll see, if something happens to you and you don't have a guardianship nomination in place, a judge would will have to decide who raises your children. And, because you're gone, you wouldn't have any say.
Peter and Faith
Jane and Dennis have two beautiful children. Peter is four and Faith is two.
After Peter was born, Jane and Dennis discussed who would make a good godparent for him.
Dennis preferred his sister and Jane preferred her sister. Either sister would have been a good choice; they were very similar. Both were free spirits. Dennis’s sister was a photographer and yoga instructor who lived in Santa Barbara. Jane’s sister was a musician who lived in Austin. Though each was unmarried, both sisters shared Peter and Jane's spirituality, love of nature, and passion for the arts.
But Dennis and Jane couldn’t reach a decision that night. It was too close of a call.
What they could agree on, however, was that Jane’s brother Frank would be a terrible choice.
While Frank was a successful attorney in Boston, he was could also be a jerk. Whenever they visited, Frank would frequently yell at his kids and wife and would brag about how many cars and houses he owned. He cared deeply about material wealth and prestige.
Neither Jane nor Dennis felt that Frank would be a good godparent. He just didn't share their values.
But, as often happens, Dennis and Jane never finished the godparent conversation.
Dennis had only taken two weeks off work and Jane’s company only gave her eight weeks of maternity leave. Juggling two full-time schedules and newborn duties made it easy for Jane and Dennis to forgot to decide who’d be Peter's godparent.
Things only got more hectic when Faith arrived. Jane didn't go back to work. But being at home with a toddler and a newborn didn’t leave her anytime to come up for air. And Dennis’ career was beginning to take off—he needed to put in late nights and weekends to keep the momentum going.
So, they never got around to naming a godparent who would raise their children if something happened.
And, unfortunately, something did happen. One night, after they attended a work dinner for Dennis in downtown, a drunk driver in a pickup truck T-boned their Prius. Dennis died on impact and Jane was in a coma for two weeks until she passed away.
Being in Santa Barbara, Dennis’ sister was the closest relative. She was able to drive down from Santa Barbara the morning after the accident. She moved into the guest room and tried her best to take care of Peter and Faith.
After Jane passed away, she found a self-help legal clinic and filed a petition to become Peter and Faith’s permanent guardian.
Frank didn’t think much of that. He thought that Dennis’ sister—a single woman without a steady job—was a bad choice. Frank felt he was clearly the best option and he wasn’t going to sit by and let Dennis’ sister ruin the kids’ futures.
So he hired an attorney to contest the guardianship hearing.
Jane’s sister didn’t even bother getting involved. She assumed that if Dennis and Jane thought she was a good option for raising their kids, they would have told her.
The judge was left to decide who would be Peter and Faith’s guardian. The only information he had was what each side submitted in their papers and their testimony.
He could tell Dennis’ sister was a dutiful and loving aunt, and that she had gone to extreme efforts to take care of the children after the accident. But, on paper, she was no match for Frank. He was a successful attorney, his business was thriving, and his wife and children would provide a stable environment for Peter and Faith.
No one told the judge that Frank was the last person Dennis and Jane would want to raise their kids.
So, in the end, Peter and Faith were shipped off to Boston to be raised by Frank.
If you pass away without naming guardians for your children, a judge will decide who raises them. If only one of your relatives steps forward and asks the court for custody, then (barring any red flags), the judge will award custody to that person.
But, if multiple family members ask the court to become your children's guardian, then the judge will have to decide who's best. To do so, the judge will only have the information provided by the parties and your children (if they're old enough to testify or be interviewed).
Unfortunately, the person who looks best on paper probably has the best chance of being named guardian. And, because you're already gone, you won't have any say.
You can avoid this outcome by formally naming guardians for your children. Then, if something happens to you, the guardians you choose will raise your children.
Now that you've seen how not naming guardians can affect your children, click the button to learn how low-cost estate-planning options end up being more expense in the end.