Do you have minor children? Who will take care of the children if you die? This is the number one reason for you to make a will.
Michael Jackson left a will in which he nominated his mother, Katherine Jackson, as guardian of his three children, Prince Michael Junior, aged 12, Paris Michael Katherine, 11, and Prince Michael II (known as "Blanket"), 7. If Katherine is unwilling or unable to serve as guardian, he named his long-time friend Diana Ross.
It is a good thing that Michael Jackson had a will and that he made judicious choices about who would raise his children. But will his wishes be honored? Katherine has been appointed interim guardian pending a hearing. Debbie Rowe, Michael Jackson's ex-wife and the mother of his two oldest children, made comments to the media indicating that she wants custody of the children. It is unclear if her parental rights were terminated. The third child, Blanket, was born to a surrogate mother who has never been identified.
There are really two types of guardians with differing responsibilities: (1) Guardian of the person, which is physical custody of the minor, and (2) Guardian of the minor's estate, which is the care and management of the minor's property. It is not necessary that the same person hold both offices. The two functions can be split between different people.
In Pennsylvania, the law permits a surviving parent to name a guardian of the person for minor children in his or her will. However, the statute provides that no parent who, for one year or upwards previous to his death, shall have willfully neglected or refused to provide for his child, or who for a like period, shall have deserted the child or willfully failed to perform parental duties, may appoint a guardian.
In addition, Pennsylvania law permits anyone who gives property to a minor in his or her will to name a guardian of that property. Parents may name a guardian of the minor's estate as well as guardian of the person. Other persons also may name guardians of the minor's estate. For example, if grandparents leave their estate to a minor grandchild, the grandparents may name a guardian of the minor's estate in their wills to manage the funds for the benefit of the minor grandchild, even if the parents are living and even if the parents do not agree with the choice.
Pennsylvania law provides that the court shall not appoint as guardian of the estate of a minor the parent of the minor, except that a parent can be appointed as a co-guardian with another co-guardian.
A guardian of the person is a sort of substitute parent. For so long as the ward (the minor child is called a ward of the guardian) is under the age of majority, age 18, the guardian has the same rights and duties as a parent. As parents, you and your spouse are the so-called "natural guardians" of your minor children. Natural guardianship is a personal right to the custody of a child until the child reaches the age of majority. Where the parents are unmarried, the mother is considered the "natural guardian." A natural guardian, however, does not have any authority to exercise control over the minor child's property, except in limited circumstances where the court approves an award to the parent.
In the case of a married couple who are both the parents of the children, a court proceeding is not required when one parent dies. The surviving parent is the natural guardian. In all other cases, such as blended families and unmarried couples, court appointment is required to have legal authority. Will the court appoint the guardian who is nominated in the will? Probably. But its not automatic. If there is no will and the parents are deceased, the court will select and appoint a guardian.
Too many young couples say, "we don't need wills; we don't have anything to leave to anyone." If you have children, you have the most valuable thing in the world. You do everything you can to be a good parent. Make sure you make a will and have plans for your children's care if you are no longer around.
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