How to pick the right guardian and executor

August 20, 2004

Carefully consider who will best fulfill your wishes should the worst occur.

If you're married, with children, you need to have that delicate discussion with your spouse about naming a guardian for your offspring. If you can't agree initially, don't worry too much. It's important to get someone's name down in your wills, but you can always amend the documents later. You can even name different guardians in your own wills.

When choosing a guardian, you should think about who would provide the best care for your children, as well as where the children would be most comfortable, emotionally as well as physically. Consider friends or relatives who agree most closely with your views on child rearing, but don't hesitate to spell out specifics either in your will or in a separate document. Obviously, you'll need to check with your choice to be sure he or she is willing to serve as guardian.

It's also wise to set aside funds for the guardian's personal use. Taking on your children may well cause some hardship. The guardian may need a bigger house, for instance, or certainly a bigger car. Discuss your thoughts with potential guardians, and consider what they think they'd need.

You and your spouse must also select executors for your wills. An executor gathers the assets, publishes a death notice giving creditors an opportunity to file claims (if such a notice is required by state law), pays the bills, and distributes what's left. All of this must be done within a specific timetable, by law.

Your best bet is to appoint a trustworthy family member or friend "from your generation or a younger one," rather than, say, a bank officer, advises David J. Schiller, an estate-planning attorney in Norristown, PA.

While you'd hope the bank officer would put your family's best interests first, there's nothing to stop him from investing the money in ways that provide extra fees for the bank, says Schiller. "You can use an attorney or accountant, if you trust that person more than family or friends, but there's no legal reason to use one," he adds. Your executor can buy expert advice, if it's needed.

If you have children from a prior marriage, think through the implications before you select an executor, cautions Joshua Rubenstein, an estate-planning attorney in New York City. "Naming the surviving spouse as executor may put him or her on the firing line. Choosing the first spouse's child as executor may give him a perfect opportunity to get back at his step-parent. But the worst thing you can do is name both of them." If hostilities already exist, choose an independent party.

Once you've completed the will, be sure to keep it updated. You'll need to consider adjustments after the birth or adoption of a child, a marriage or divorce, or a job change. Otherwise, review your will at least every three to five years.

Vicki Brentnall. How to pick the right guardian and executor. Medical Economics Aug. 20, 2004;81:32.