Can I designate to whom my children will live in a will? How?

Question

I am a single father with two young children.  Their mother left four years ago and we rarely see her; she has limited supervised visitation in the divorce decree.

Christine Socrates · Answer

You can make provisions for the appointment of guardian for your minor children within your will and your trust if you.

Thomas Phipps · Answer

You can name any anyone you want to be guardian.  A judge will make the final decision.

James Weiner · Answer

You can designate who you choose to be their legal guardian in a properly drawn up will.  However,  I believe that Michigan law gives their mother priority to be their guardian if she wants them if you pass.  However, memorializing your choice in a will ... will give whomever you want to be their legal guardian a fighting chance.   BTW I assume that you also have life insurance or other assets that would go to the minor children also.. one reason their mom would choose to be their guardian is to step in to have access to their inheritance until they are adults. So be sure to set up a trust also and separate the money from the kids.. that way you can protect your assets from her and her legal guardian so they actually know you provided for them. I routinely advise single parents to do this because usually they spouse split because of money problems (do you really want your ex to have access to your money?)

Sanford M. Martin · Answer

If your former wife has parental rights according to the divorce decree or marital agreement, she will still have those rights if you die. You can express in your will your desired guardian(s) of your children, but your ex-wife will be able to use those rights, if she wants, to ask a court for custody. It appears you should express such desires in the interest of your children but you should be aware of the issues that may arise. If your ex-wife has serious reasons justifying supervised visitation, she may also have difficulty getting custody. So it will depend on the situation which exists at the time.

Dara J. Goldsmith · Answer

Your wife has priority to raise the children in the event of your demise.  You may name a guardian in your will but the proposed guardian would have to show the court that the mother is unfit (not easy to do, i.e. a felon, drug conviction, child endangerment, etc.  not just not a good mom) to raise the children.   You may want to name who is in charge of the children's inheritance. That does not need to be the mom.

Christine James · Answer

Your question is not entirely clear.  That said, you can certainly designate a guardian for your children and any money you might leave to them.  You want to be very clear and specific in your designation as to the facts behind making it.  Their mother will be legally entitled to physical custody of the children, absent any showing by a third party that she is unfit.  That said, control over the money you might leave behind is entirely up to you, and I suggest you consult with an attorney who is willing to take the time and make the effort to ensure that you desires are clearly stated in the hopes that they are specifically met.  At James Law Group we make every effort to respond to you quickly and efficiently.  This means we may be responding to you from a mobile device.  As you know, responding on these devices can result in typographical errors that my otherwise not occur.  In order to provide this extra service, please be aware of this and excuse any errors that may be caused by responding in this forum.    The content of this message is protected by attorney-client privilege.

Georges Shers · Answer

You do not "own" the children so you can not state with whom they will live. You can state that the assets of your estate will go to a certain person only if the children are living with that person or some other type of provision making the disposition of the property subject to certain acts occurring. You have to be careful that the terms do not violate public policy, such as forbidding the mother from having custody because she is the mother as opposed to her not needing the money since she does not have the children.

Jayne Sebby · Answer

Absolutely. One of the main purposes of a will is to indicate who will become the guardian of any minor children. Your children's mother may object and petition a court for custody. So take that into consideration when you choose the guardian and provide plenty of documentation as to why the judge should follow your wishes.

Norman Green · Answer

Nominate guardians. Usually this is done in a will, but it also can be a separate document.

Brian Haggerty · Answer

You can state your choice for a guardian in your will. Your choice of guardian will still have to petition for guardianship. Frankly, unless the mother is hopelessly unsuitable (I mean, convicted felon currently in jail unsuitable) the rights of the natural mother will prevail. Talk to your family law lawyer, maybe some agreement could be struck between you and the ex concerning raising the children if something happens to you.

Jeffrey Strickland · Answer

By naming guardian(s), and successor guardians in the Will. There might be legal action if the mother decides to exert her rights as natural guardian or challenge the guardianship.

David Leon · Answer

You can establish a guardian for your minor children should the need arise. It will not override a court order in your divorce, however. Typically, this is done in a will instrument.

Richard Keyes · Answer

You would list who you would want as guardians of your children in your will. Normally the surviving parent gets custody. However, you state that she gets limited supervised visitation. There must be a valid reason for this and you should make it known in the will that the person(s) named guardian needs to fight for the custody. Please see an attorney for further information.

James Oberholtzer · Answer

You can try but it is only a suggestion. In the absence of a danger to the children, the court will probably leave the natural parent as the custodian.

Thomas Edward Gates · Answer

You can name a guardian in your Will who will raise the children in your absence.

Victor Waid · Answer

Yes, you can, and should establish in your will, who will be the guardian of your children, and obtain the person permission as to who will be the guardian. That person may have to interface with the mother to the same limited extent as permitted by the divorce decree; the key here will be the type of custody you were awarded in the divorce decree; sole or joint legal, physical?

Mark T. Peters · Answer

You can try, but if the mother wants to be the mother and has the ability to do it, then she will probably get custody. On the other hand, if you make sure that the money goes to somebody else to control, she may not want to be the mother if she cannot control the money. It would not hurt to tell the court whom you believe should be the guardian

James Frederick · Answer

Yes, you can do this. Of course, if you die, the court will still be predisposed to having the mother named as guardian, unless someone objects on safety grounds. It is virtually impossible to prevent a surviving biological parent from getting custody. What you can do is to tie up all the money, so you will eliminate a huge financial incentive for her to go after the kids. A trust is the best way to do this.

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Can I designate to whom my children will live in a will? How?

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