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A standard Will and Trust Package always includes a “Nomination of Guardian” if you have minor children. It can be a little confusing to understand the difference between a “Guardian” and a “Successor Trustee” because while they are usually the same person, they can be different people. Whether they are the same or different individuals, the roles have different legal rights and responsibilities.


A “successor trustee” is the person you choose to take over your financial affairs in the event both spouses have passed way. Eventually you would name your grown children to be that person so that they can take over the estate assets to be liquidated and then proceeds distributed to them as the trust beneficiaries. That is the expected scenario, but a Will and Trust Package is also designed for what I call the catastrophic event when both spouses unexpectedly pass away while their children are minors. In that case, it is necessary for the someone to take possession of your financial assets and use them to pay for the health, education and welfare of your children. That is the role of the successor trustee and you are free to legally appoint any person you wish. This does not take court action but rather is accomplished in your Trust Agreement. No further action is necessary. The person you designate as your successor trustee has full legal authority to control your assets when both spouses have passed.


A “Legal Guardian” is the person appointed by a court to have legal custody of your children. While you can appoint anyone, you desire to have financial control of your assets without having to go to court, as explained above, only a court can actually appoint the person that has legal custody of your children. A legal guardian has the ability to enroll your children into school, apply for a passport, and to take physical custody of them. It is the person that is charged with actually raising your children. Needless to say, it requires a court order in all cases. It is usually the same person that has financial control of your assets, the successor trustee, but it need not be.


While only a court can actually appoint a legal guardian, you may nominate the individuals you wish to serve as guardian. The nominated person is usually a close family member, like a brother or sister, but might also just be a close family friend. A court would normally have no reason not to appoint the person you nominate, but it does not have to. The legal standard is for the judge to do what’s in the best interest for the child regardless of the nomination by the parents. While at first this might be disconcerting to you as a parent, bear in mind that you really do not know who would be the best person for that role since life changes and its difficult to predict the exact circumstances at that time. For example, if you chose a close brother overseas in your home county to be the guardian at the time your child was one years old, then a court may very well agree that the brother would be best person to raise the child overseas given the close family ties. But what if 16 years later that child is now 17 years old and about to go off to college and you never updated your nomination form? A court is not going to appoint the person overseas to be the guardian in that case, especially if there is a family friend that steps up and agrees to care for the child for the short time before they go off to college. In such a case you would be glad the court made the right choice.


The real point of nominating guardians is to provide the court with as many individuals that you believe could and would be a good choice to raise your children as their own. You don’t really know if a named person would even accept such an appointment at the given time. Hence, you want to name backups individuals as well. The same principal goes for naming the successor trustee. The person you name might not be available or willing to serve as the responsible person for your finances, especially because they may have to serve for many years. Hence, providing two or three persons as backups to your main choice or guardian or successor trustee allows for a greater chance of having the right person serve for the role. Of course, it would be a natural choice to make the guardian and successor trustee the same person. But there may be a situation where you want one close relative to be in control of the money and someone else to be the care giver of the child.

Call Tony Bayard de Volo, Esq. at 408-288-5431 for a free consultation. - San Jose, California.

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