Issue 1: Making a Will. If you have an estate plan that is largely based on one or more trusts, you still need to make a Will so you can select your choice for your child’s guardian. While you can still use trusts and name the child as beneficiary, the guardian nomination must be specifically stated in your Will. If you don’t yet have a Will, you need to get started right away.
Issue 2: A guardian has to be qualified. A legal guardian in New York must be at least 18 years old and must either be citizen or a legal resident of the United States. Beyond that, the person is under no obligation to accept the nomination, meaning he or she can refuse to serve as guardian. Because of this, you should make sure that you ask the potential guardian about his or her willingness to serve. You should also name a pair of alternates in your Will in case the other choices cannot or will not serve.
Issue 3: A court will make the final decision. After nominating the guardian in your Will, a judge will make the determination about who becomes your child’s guardian. Although the court will give your choice a lot of consideration, it will not appoint someone who it believes will not serve your child’s best interests. Once the court makes its decision, it gives the guardian “letters of guardianship” that establish his or her guardianship rights.
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