In just the last few days, my wife and I were blessed with the arrival of our second child. Having a new baby in the home certainly shakes things up, to say the least.
For many in my “demographic” (thirty-somethings with young families), the arrival of a new child prompts discussion of estate planning, often for the very first time. Suddenly having a plan in place is a little more important when there is someone else to worry about.
Of course, most young families have not amassed a significant monetary estate. However, they do want to know that someone will take care of their children if something happens to them.
According to Alabama law, a parent can nominate the person (or people) to serve as a child’s guardian either by last will and testament, or by an “other writing signed by the parent” and attested by at least two witnesses, or acknowledged by a notary public. Ala. Code § 26-2A-71(a). Most people do it as part of their will, rather than executing a separate document.
So long as one natural parent is living, and that surviving parent has not been declared mentally incompetent, or had his or her parental rights terminated by a court of law, then the surviving parent will of course remain the sole guardian and parent of the child. But, if both parents are deceased, incompetent, or have no parental rights, then the nominated guardian may begin to serve once the nomination has been approved by the probate court.
The “nominating instrument” (typically the will) must be probated, and the nominated guardian must file an acceptance of the nomination with the probate court.
When both parents are deceased, the guardian who was properly nominated by the second of them to die will get priority of appointment. This is important. Consider, for example divorced parents—it is entirely plausible that the former spouses did not nominate the same guardian.
If the minor is at least 14 years old, they may object to the nomination, though the court is still authorized to appoint the nominated guardian despite the nomination.
Note that a guardian is primarily responsible for caring for the physical person of the minor. A conservator may also need to be appointed to handle the minor’s property. The conservator may, but does not have to be, the same person as the guardian.
What happens if the parents have not nominated a guardian? In that case, the court is tasked with appointing “any person whose appointment would be in the best interest of the minor.” Ala. Code § 26-2A-76. If the minor is over 14, the court “shall appoint” the person nominated by the minor, “unless the court finds the appointment to be contrary to the best interest of the minor.”