Probate Guardianships – Minors and Wills

Posted by Sheri Tucker, M.S., J.D.Dec 04, 20170 Comments

Probate guardianship of minors
Probate Guardianships of Minors is different than Guardianship of an incapacitated or person with moderate to severe disabilities. Guardianship over a minor, is named in a parent's will.  A will is the most important estate plan a parent must have. Guardianship over a minor must be decided in Probate Court if both parent's or guardians are deceased. As a parent, it is difficult to think of someone who can raise our children in our place. Yet, planning for guardianship of a child is one of the most important decisions a parent can make. If a parent does not have a parent guardianship plan in place, the State has a plan.

MO Statute 475.045.1 provides the governing law for appointment of guardianship of a minor:

1. Except in cases where they fail or refuse to give required security or are adjudged unfit for the duties of guardianship or conservatorship, or waive their rights to be appointed, the following persons, if otherwise qualified, shall be appointed as guardians or conservators of minors:

  • (1) The parent or parents of the minor, except as provided in section 475.030;
  • (2) If any minor over the age of fourteen years has no qualified parent living, a person nominated by the minor, unless the court finds appointment contrary to the best interests of the minor;
  • (3) Where both parents of a minor are dead, any person appointed under this section or section 475.046 by the will of the last surviving parent, who has not been adjudged unfit or incompetent for the duties of guardian or conservator.

2. Unfitness of any of the persons mentioned in subsection 1 for the duties of guardianship or conservatorship may be adjudged by the court after due notice and hearing.

3. If no appointment is made under subsection 1 of this section, the court shall appoint as guardian or conservator of a minor the most suitable person who is willing to serve and whose appointment serves the best interests of the child to a stable and permanent placement.

Parents know their children. The Court will decide who is the most suitable guardian for your children. Parents need to choose the best guardian who can step into the shoes of raising a child. When you are working with your attorney on a will, here are some recommended step for guardianship choices:

1. Decide who will have legal authority. Avoid the void of a guardian and the state plan. Without a guardian, a child may go to Child Protective Services until someone with legal authority is determined or released to a family member. Make sure your choice is a good choice.

2. Don't surprise the potential guardian–Discuss the guardianship issue to make sure everyone is on board.

3.  If you guardian choice is out of state, make sure you have the necessary documents that will be needed.  Moving a child out of his/her home state is a difficult decision.  Prepare your guardian choice with the proper legal understanding of what will be needed.

4. Put Your Plan in Action – Legally. Have your attorney create the documents you need in place. Tucker Legal Services prepares wills that name a Guardian for your children.

5. Write a Memorandum explaining your wishes for how you want your children raised, education, spiritually, and financially. The Memorandum is not a legal instrument but is your personal letter.

6. Plan Financially – Talk to a financial advisor to help decide how to organize assets in the event of death. Even if you don't think you have enough assets–having a will or even a trust for your assets is essential.

7. Put the financial plan into writing. You need to make sure the guardian also has access to your assets upon death and avoid probate costs and legal battles with money that could go to your children.

9. Protect your children's inheritance. Set up a Trust for your children and make sure you have the right Trustee in place.  The right Trustee takes care of your children's financial future. If possible, the Trustee should be a different person than the guardian.

Although it is difficult to think about, the best guardianship plan is one that the parents write. When my children were little, I had peace of mind with a plan in place for the just in case. Call Sheri Tucker for help with your plan.Book Now