Answer: A parent may recommend a legal guardian for their children to a North Carolina court in their last will and testament.
If you have children under the age of 18 (“minor children”) and you haven’t named a guardian in your will and both parents predecease their children, a court will decide who will raise your children without your input.
What is a Legal Guardian?
A guardian is a person who cares for minor children (or incompetent adults). A guardian fills the role of parent if the child’s natural parents are deceased or declared incompetent. There are different types of legal guardians, for the purposes of this article, “guardian” means “guardian of the person.”
A Court Has the Final Say.
This is surprising to many people, but there is a good reason for not automatically going with the parents’ recommendation of a legal guardian. Imagine that you’ve draft a will when your children are first born and name your brother Alex as their legal guardian. Fifteen years have passed and after tragically rescuing your children from the wreckage of a sinking battleship, your will is being read. Your brother Alex moved to Singapore, joined a cult, and has been in jail for ten years. A North Carolina judge understandably refuses to honor your recommendation of Alex as the guardian of your minor children.
Include a Recommendation in Your Will and in a Guardianship Letter.
In North Carolina, your will is the only place you can recommend a legal guardian for your minor children. Section 35A-1225 of the North Carolina General Statutes allows a parent to make a “strong recommendation” to the clerk of court as to who should serve as guardian for his or her minor children. In drafting wills for parents of minor children, I will often include a reference to a guardianship letter and restate the parents’ wishes directly in their wills. Although everyone should review their estate plans every five to ten years to adjust for major life changes, the reality is that many people do not. A guardianship letter allows parents to change their guardianship recommendation, without formally re-drafting and re-executing their wills.
It is better to include your current guardianship recommendation directly in your will, because, arguably a guardianship letter which is changed after a will has been executed may not be considered. N.C.G.S. § 31-51. But, a guardianship letter allows for flexibility in an estate plan and ensures that a court receives parents’ most recent recommendations, even if parents are unwilling to have their attorney change their wills. Parents’ wills should include a guardianship recommendation directly in the will (restating what’s in the guardianship letter at the time of execution), in the event that a court does refuse to consider the guardianship letter.
Like all of the roles (executors, trustees, and beneficiaries) you appoint in an estate plan, you should recommend alternative and successive guardians, which reduces the likelihood that your recommendations will fail.