Recently in Guardianship Category

February 20, 2011

When Divorced Parents Disagree on Guardians

Will being signed.jpgDear Liza: What if divorced parents disagree on a guardian? In the case of joint legal custody, with visitation for one parent, are the wishes of the parent with physical custody granted, or does it solely depend on who dies first? Or does it also depend on which state? It is always unfortunate when divorced parents cannot agree on who should take care of minor children. I always encourage my clients to try and find common ground on that, at least. But here's what happens: the first parent to die isn't going to have a say in the matter in most cases. Unless there's some compelling reason not to let the surviving parent take custody (they are in jail; they don't want to take custody; history of abuse), the surviving parent will be in charge of raising the children. That parent's Will, subsequently, will control who is then nominated to be a guardian for minor children. If you have good reason NOT to want a divorced spouse take custody should you die first, you can put that information into your Will (which will be public after your death), or put it in a side letter to be opened only upon your death. If you are seriously concerned about this, please see a good estate planning attorney in your state, so that your estate plan can appropriately document your concern and your reasons for such concern.
July 5, 2009

Wills v. Trusts (and Michael Jackson)

This week, Michael Jackson's will was filed in the probate court. It was surprising, actually, that someone with his assets died with only a will. In California, it is common for those with property (even just a home) to create a living trust so that their assets will pass to their heirs without the cost and delay of a probate proceeding.

There are times, though, when probate can be an appropriate place to settle an estate, and Michael Jackson's might be the poster child for these cases -- when there are messy creditor claims to sort out. Like a bankruptcy court, a probate proceeding is place where creditors and their claims (and we won't even mention the guardianship issues being raised right now) can be sorted out by a court, in a set period of time and with finality.

The AP has published a good article if you're trying to sort out whether a will or trust makes more sense for your family. Briefly, though, if you live in a state (like California) where probate is expensive and time-consuming, if you want to leave everything to your kids, if you own a home, and if you don't have complex credit issues, a trust is generally a great long-term investment.

For practical, straightforward recommendations on estate planning options, see The Mom's Guide to Will and Estate Planning, by Liza Hanks (Nolo).

June 29, 2009

Michael Jackson's Mother Granted Temporary Guardianship

Michael Jackson left behind a tangled financial web, sure to take many years and many lawsuits to sort out. But he also left behind three young children (aged 12, 11 and 7) and, apparently, no valid will (at least, one has not yet been submitted to the Los Angeles County Probate Court as of this post). Today, June 30, his mother, Katherine Jackson, has been appointed as their temporary guardian. Hearings will be held on July 6 and August 3rd to determine if she'll become their permanent guardian.

Since this (to put it mildly) is getting a lot of media attention, here's the legal background:

A guardian is in charge of a minor's care and custody, which means their food, clothing, shelter, education and medical needs. A guardian has to be appointed by a court order -- it's a kind of custody order really, granting someone other than a parent legal authority over a minor's care. If there's an emergency, a court can grant a temporary guardianship quickly.

But between now and the hearings, Katherine Jackson will have to do her best to find and notify Deborah Rowe, the mother of Jackson's two eldest children (his youngest was born to a surrogate mother who presumably waived any parental rights as part of the surrogacy).  At the hearing, a judge will consider what would be in the best interest of Jackson's children. The notification of the children's mother is required in order to make sure that she has a chance to object to the guardianship at that hearing -- ordinarily, a parent has precedence over anyone else unless there are unusual circumstances, which abound here.

If Michael Jackson's will is found, and proved to be his valid last wishes, and the nominated guardian is not Katherine Jackson, the named person may contest the guardianship proceeding, too. But ultimately, it will be up to the judge to sort out the competing claims and decide what's best for the children.

It is reported that the petition also requested that Katherine Jackson be named the temporary guardian of the children's estate,  which means the person responsible for safeguarding Jackson's assets for the benefit of the children -- but this was rejected. AP also reports that Katherine Jackson has filed to be named the administrator of Jackson's estate -- the person who must inventory and appraise the estate's assets and manage them during what's likely to be a long and complicated probate proceeding.

To learn more about guardianships, see Nolo's Establishing and Maintaining a Guardianship FAQs.