Will appointing guardian for minor child

[DsmithAsmith]

What is the name of your state?What is the name of your state? California

My Sister in law is trying to create a simple will, she is actually not worried about her assets, just her son. She served her husband with divorce papers today, and is worried he might go off the deep end. Although none of us believe he is capable of killing her, on the off chance that he did she should have a will. She would like to appoint my husband (her brother) as the guardian of her son. The will I found online read like this:

III. GUARDIAN: In the event I shall die as the sole parent and guardian of my minor children, then I appoint ____________________________________ as Guardian of said minor children. If this named Guardian is unable or unwilling to serve, then I appoint ____________________________________ as alternate Guardian.

Would this be acceptable laguage, as it does say, shall I die as the sole parent and guardian. If her husband was still around, but in jail or something, would this be enough for my husband to at least have a legal 'leg to stand on' in court?

 

[seniorjudge]

What is the name of your state?What is the name of your state? California

My Sister in law is trying to create a simple will, she is actually not worried about her assets, just her son. She served her husband with divorce papers today, and is worried he might go off the deep end. Although none of us believe he is capable of killing her, on the off chance that he did she should have a will. She would like to appoint my husband (her brother) as the guardian of her son. The will I found online read like this:

III. GUARDIAN: In the event I shall die as the sole parent and guardian of my minor children, then I appoint ____________________________________ as Guardian of said minor children. If this named Guardian is unable or unwilling to serve, then I appoint ____________________________________ as alternate Guardian.

Would this be acceptable laguage, as it does say, shall I die as the sole parent and guardian. If her husband was still around, but in jail or something, would this be enough for my husband to at least have a legal 'leg to stand on' in court?

A will cannot terminate a parent's rights.

Go ahead and put anything you want in there about a guardian; no court is bound by it.

 

[DsmithAsmith]

I am just saying... in a worst case senario, if the husband kills my SIL, how would they decide who kept her son while he was in prison. If there was a will stating her wishes, would that have any bearing on the court, as opposed to having nothing at all... I realize this is not an absolute, but can the court consider it?

 

[Leinalani]

I am just saying... in a worst case senario, if the husband kills my SIL, how would they decide who kept her son while he was in prison. If there was a will stating her wishes, would that have any bearing on the court, as opposed to having nothing at all... I realize this is not an absolute, but can the court consider it?

You cannot WILL children. If she writes up a will willing her son to someone, it will NOT hold up in court. Wills can only determine the placement of PROPERTY and her son is not property.

The legal way to do this is to obtain information about a Standby Guardianship from which the child will be placed in whomever's custody when/should she die or become mentally incapable of caring for him.

BUT, since her son does have a father, the father will be able to contest the guardianship and more than likely, in order for the guardianship to be legal, the father's agreement and signature will be needed.

So a will willing her child will do NOTHING. Look into a Standby Guardianship. And get an attorney.

 

[Leinalani]

Here are some online resources to aid in your research:

http://standbyguardianship.org/national/ca.asp
http://naic.acf.hhs.gov/general/legal/statutes/guardianship.cfm

 

[DsmithAsmith]

Thank you for your knowledge and response. I was never sure about how you appoint guardians for your children, now that you say, wills are for property children are not property, I realize I have heard that somewhere before. I will look into the guardian thing. Thanks again.