Establishing Guardianship in a Will

November 29th, 2022 by Bunch & Brock

Use Your Will to Protect Your Family

Having a will is an essential part of planning your estate and protecting your family, especially if you have a child under 18 or a disabled adult who is dependent on you. You will not only spells out your final wishes and determines what should be done with your assets, it also makes sure your family will be taken care of, and this includes establishing a legal guardianship.

In Kentucky, wills give the person writing the will, called the “testator,” the ability to make sure that a spouse, children, and other loved ones are taken care of after death. While the last thing you may want to think about is a death that leaves behind your minor children, establishing guardianship provides the peace of mind that your children will be cared for by someone you trust, and it avoids the possibility of negative consequences, such as a child winding up in foster care. In the case of your tragic death, your guardian will be able to care and act for your child (called the “ward”) with the same parental responsibilities and authority you would have if still alive.

How To Appoint A Guardian For My Child If I Die

Start by Choosing a Guardian

If you have a surviving spouse, you usually can rely on them to care for your minor children after you die. If your spouse also passes away, is incompetent, or has abandoned the children, it’s important for you to choose a guardian and name this person in your will. In making this choice, you may wish to consider close family members and trusted friends who are willing to (and who are able to) take on the responsibility of raising your child. You may also consider the person’s religious and personal views and beliefs about topics such as the importance of education.

Before naming a guardian, you should discuss the situation with the person who may raise your children. Make certain they thoroughly understand the responsibility involved and that they are really willing to do so. Once this is established, you should name this person in your will. You can write your will so it incorporates a great deal of detail about how you would like your child to be raised, and this can be a useful guide for the guardian

A consultation with a Kentucky estate planning attorney can make sure everything is done correctly and that your wishes are carried out. Your attorney can also look for potential problems and raise options and issues you might not have considered. It’s a good idea to schedule a meeting that includes you, the guardian you wish to appoint, and the attorney to go over the details of the will regarding the care and future of your child.

What Is A Legal Guardian In A Will?

In general, a legal guardian nominated in a will can be anyone who is at least 18, not currently incarcerated, and of sound mind. In Kentucky, guardianship is a legal relationship between a court-appointed adult who assumes the role of guardian for a ward. A ward is a minor under 18 or a person who has been declared legally disabled by the court and is no longer able to care for his or her personal and/or financial needs.

According to Kentucky law (Ky. Rev. Stat. Ann. § 394.020), to make a will in Kentucky, you must be:

  • an individual 18 years of age or older, and
  • of sound mind.

If you have nominated a guardian in your will, the courts will conduct guardianship proceedings in the county where the will of the minor’s last surviving parent was probated. When no guardian has been nominated by will, the proceedings occur in the county where the minor is living.

During the guardianship proceeding, the court may review the details of your will, especially if it is being challenged. If your choice of guardian is challenged, most judges will examine the individual situation, and usually will go along with your guardian choice as stipulated in your will. However, in rare case, the judge may decide against to name someone else as guardian. This is another reason to have an attorney has help prepare your will and appoint the guardian you wish to be there for your child.

Can You Leave Guardianship In A Will?

You can and should leave instructions for guardianship in your will in Kentucky. If you are the last surviving parent of a minor, Kentucky law allows you to appoint a guardian in your will to have care, custody, and control of the minor. However, ultimate decisions about appointment and removal of guardians are made by District Courts in Kentucky. The District Court appoints the person or entity who would be in the best interest of the minor, after taking into consideration the person or entity nominated in the will by the last surviving parent.

The wishes of the minor who is age 14 or older will also be considered by the court. A minor aged 14 or older may appear in District Court or before a judge to nominate their own guardian. This ability to nominate a guardian takes precedence over a previous appointment by a will or otherwise before the minor was age 14. Therefore, if you think your child between age 14 and 18 will nominate someone as guardian of whom you do not approve, make sure your will states your preference for the guardian you want and also explains why you think that person is better than other alternatives.

What Does a Guardian Do?

In Kentucky, a guardian has the powers and responsibilities of a parent in making decisions for the ward’s support, care, and education. The guardian is not personally liable for the ward’s expenses or liable to third parties for acts of the ward. Money for the support of the ward may come from benefits such as Social Security or from any insurance contract, bequest, or trust. The guardian is required to invest their ward’s funds responsibly and is allowed to distribute income or principal of the ward’s estate without District Court authorization. However, District Court approval is necessary if the guardian wishes to sell a ward’s real property or to settle a lawsuit or claim brought on behalf of the ward.

Kentucky law does not allow minors to receive an inheritance outright. Their inheritance must be placed either in a trust or in a custodial account, and then a guardianship or conservatorship must be created for the child. The guardian has custody of the child and controls the minor’s assets until the child turns 18, when they receive all remaining guardianship funds. A conservator does not have custody of the child and only manages the inherited assets during that timeframe.

Guardians are usually compensated from the ward’s estate for their services and are reimbursed for reasonable and necessary expenses. Usually, reimbursement may not be more than 6% of the income collected by the guardian, plus an annual commission of either 0.3% of the ward’s property or 6% of the principal distributed by the guardian. This may be increased if the guardian can prove having performed “unusual or extraordinary” services for the ward.

Get Help With Establishing Guardianship in a Will

If you have not named a guardian for your child at the time of your death, the Court will likely appoint a guardian or conservator, and will do so without knowledge of your wishes or your family dynamics. Therefore, it’s important to plan for your child’s future in case of your death by creating an estate plan with the help of an experienced estate planning attorney while you are still healthy and able to do so.

The experienced and compassionate estate planning attorneys at Bunch & Brock, are fully prepared to discuss your individual situation and will help you chose and establish guardianship in your will. In addition, we will discuss options, such as creating a minor trust and planning for probate, that will ensure that your child will be taken care of and will receive their inheritance the way you direct it and at the age you determine.

We understand that each case is unique, and we work hard to protect the best interests of hundreds of clients. We are committed to provide the highest level of personal service, and we will walk you through each of the steps that must be taken. To schedule an initial consultation, please call Bunch & Brock today at 859-254-5522.

Attorney Matthew Bunch

Matt handles complicated bankruptcies and debt restructuring in Chapters 11 and 13 for both individuals and companies. He has also negotiated with multiple creditors on behalf of his clients to avoid bankruptcy. Matt is the firm’s lead litigator and handles contract disputes, certain personal injury claims and general litigation. [ Attorney Bio ]