Last week I wrote generally about the benefits of doing estate planning to replace the cookie-cutter plan the State of Oklahoma has for all its citizens. This week my focus is on one aspect of the estate planning process: the appointment of guardians for minor children.
If both parents pass away at the same time or a single parent passes away, Oklahoma law requires that a guardian be appointed. A Judge is going to make this appointment and the process, depending upon the material with which the Judge has to work, can be anywhere from smooth and relatively quick to painful and protracted. There are two sources to which the Judge can look. One is Oklahoma law that provides an order of relatives who might be entitled to appointment; the other, if it exists, the written nomination by the deceased parents of the person they want to serve as the child’s guardian.
If the deceased parent has nominated a competent individual, this person is usually appointed with no issue. If, however, the deceased parent has not nominated anyone, the Judge will consider the law and the request from what frequently turns out to be competing relatives. If there are competing relatives, the child could be placed in foster care until the Judge makes a decision. It also goes without saying that the people with whom the child is placed may not be the people the deceased parents wanted.
The way to avoid this scenario is to nominate a guardian in your Last Will and Testament. While a Judge is not legally required to honor a nomination, for all practical purposes, the Judge will honor the nomination (your choice).
In my law practice, we address the critical decision of guardianship in all Wills and Trusts we create.