By Shaina Case
No one likes to envision the scenario in which they have children and then do not have the joy, pride, and pleasure of raising them. No one cares for your own children like you do. Planning and preparing, for what is hopefully a very remote and unlikely event, helps to ensure that you have taken care of your minor children if you die prematurely.
If one parent passes away or is otherwise unavailable to care for their minor children, by statute, the other parent has first priority for guardianship. Wyo. Stat. Ann. § 3-2-107(d). If both parents pass away or are otherwise unavailable to care for their minor children, then the statutory priority is as follows: first to the person nominated as guardian in the will of the custodial parent; second to the person requested by a minor who has reached the age of fourteen years; and then finally to any other person whose appointment would be in the best interests of the minor. Id.
Generally, for parents that are married or otherwise mutually care for their minor children, once one parent dies, there remains a surviving parent to continue caring and providing for the minor children. Accordingly, in this scenario, there is no need for a court to appoint a guardian. If there is not a surviving, or otherwise available or willing, parent to act as guardian, then the deceased custodial parent’s will guides the court in appointing a guardian. Whether establishing a trust based estate plan with a pour-over will (a pour-over, or spill over, will accompanies a trust plan directing that all assets not otherwise in the trust be transferred into it at the time of death) or a will based estate plan, the will is the most important and effective tool in making your wishes known by specifically nominating the guardian(s) you want to care for your children in the event you cannot.
Wills can specifically name a relative or friend or any other person you deem best qualified and willing to serve as guardian over your minor children. Your will can even set out specific requirements, for example by nominating a couple for so long as they are married or for so long as they are still residing in a certain place at the time of your death. You can even name successor guardians in the event your first selection of guardian(s) is unwilling or unavailable to act. Importantly, wills can be amended, allowing you the ability to measure the capabilities and qualities of the persons you have initially designated and then, if appropriate, change your initial choices during your lifetime.
Courts often abide by the deceased custodial parent’s nomination of guardian. This means that unless you want your 14-year-old child having some decision into who will be his/her guardian, or having a second cousin, an in-law, or other person who claims that it is in your child’s best interests that he/she be the guardian, it is important to take control over who will care for your minor children. Further, having a will that states who is your first and second choice of guardian helps to avoid arguments among families wherein one member may argue he/she is better suited as guardian over another.
Hirst Applegate, LLP can help you prepare your estate plan to designate guardians. Contact one of our estate planning attorneys, John Metzke, Lindsay Woznick, Shaina Case, or Jessica Schneider, with questions.