The kids are not alright
January 13, 2021 1:54 PM   Subscribe

I am trying to do some estate planning for my sister. Her lawyer tells me her will cannot be finalized without naming a guardian. There in lies the problem...

After suddenly losing her husband, my sister is left caring for a 12 and 15 year old. The New Jersey lawyer says:. " I spoke with the Surrogate and the executor cannot appoint a guardian. Someone needs to be named in the Will. That person can always renounce being appointed and designate someone else or allow DYFS to take the kids. We also cannot name DYFS as a guardian in the Will."
There is no body on the husbands side living and sister does not have any close friends. I am the only possible option – and it would cost me greatly (bye bye wife-y). I've made the decision, I don't want/can't to do it nor do I want to re-visit the decision again at a later date... other than naming Joseph Biden, do I have options?
posted by pmaxwell to Law & Government (17 answers total)
Isn't the act of renouncement only in the event of death and the will being executed?

I'd name yourself for the sake of the will, then renounce and figure out a Plan B if your sister ever passes and the children need care.
posted by NotMyselfRightNow at 2:03 PM on January 13 [27 favorites]

You know what would be a real pain? Your sister dying without a will. It seems that this could very well fall on you in that case. Having your name down doesn't mean your "wife-y" would leave. It means you would need to figure out suitable caregivers for these children. It could be that they have other families who would care for them, for example (parents of a best friend, say). She only needs to make it less than three years for the older kid and less than six for the younger kid. Get your name down, and if something happens, you'll figure it out then. It would be a much bigger mess for you if she were to die without a will.

Are you suggesting your wife would leave you if you were to have your name down in the will? Not just if you took care of these kids if your sister died? You don't need to be ready to be these kids' guardian, but it sounds like you might end up wrangling some of this all anyway.

The kids are old enough that, if their mom dies, they might very well have opinions on where they'd want to be.
posted by bluedaisy at 2:10 PM on January 13 [60 favorites]

Is your sister terminally ill or something? If not, seriously, just accept the guardianship in the will and make sure your sister has term life insurance to help out with the kids’ care in the unlikely event she does in the next six years. Even if you name Joe Biden as the executor I’m guessing you’d be responsible for tracking him down and getting him to renounce guardianship. If someone’s going to do that, why not you?
posted by mskyle at 2:17 PM on January 13 [8 favorites]

This may vary by state, but I was named guardian for my nephew in my sister’s will, but it was not automatic at her death. I still had to be appointed by the court, and if I had not been approved, or had declined, the court would have appointed a guardian. Maybe worth consulting a family law attorney (representing you, not your sister) on the process in your jurisdiction.
posted by tinymojo at 2:24 PM on January 13 [7 favorites]

I think someone is miscommunicating or misunderstanding something. There is no requirement to name a guardian for your children in your will. The will is not going to get thrown out of court if it doesn't name a guardian. Your sister can instruct her lawyer to complete the will without naming a guardian.
posted by Sxyzzx at 2:31 PM on January 13 [11 favorites]

name yourself, renounce it in the unlikely event that your sister dies while the kids are in their minority.
posted by fingersandtoes at 2:34 PM on January 13 [2 favorites]

Does your sister have an insurance policy in case of death? That could offset the costs in such an unlikely case.

My wife and I have it, and the sum goes to the other in case one of us dies while we are raising our kids.
posted by nickggully at 3:40 PM on January 13 [2 favorites]

Have to say this comes across as pretty selfish. Their dad is dead, and their uncle has no interest in supporting their health and welfare. Poor kids.

Without knowing the details, I say just agree and then if your sister dies, figure it out then. There are options for the care and support of the kids, especially older ones . A life insurance policy for the sister would be a good option if you can afford it.

I'm sorry your wife is not on board, but I feel you do have a moral obligation here. They are children and need the adults to support them, whatever bs has happened is not their fault.
posted by rhonzo at 3:44 PM on January 13 [28 favorites]

Can we lay off the judgement? It is okay to refuse to parent. There are a variety of very good reasons why someone might not be an adequate parent. It is not OPs fault that their relative never got around to figuring out alternative guardians.

That said, I agree that it seems easiest to just be the guardian in the will and sort it out later if needed, assuming that it’s unlikely your sister will die in the next few years. I would tell her that it is your plan not to parent the kids.
posted by momus_window at 4:15 PM on January 13 [36 favorites]

I'm not sure how best to solve your problem, but please do not feel an iota of guilt if being a parent is simply not for you, and please try not to resent your wife if being a parent is not for her. People have fought and died for women to have autonomy over whether they become parents, and men should also not be forced into this position.
posted by zeusianfog at 4:34 PM on January 13 [11 favorites]

Obviously if you list yourself you can defer, but I feel like I should point out for other answerers: I can imagine an emotional barrier to actively saying "I can't do it" when the choice is directly in front of you-- if it's OP or foster care. Way different than saying now, "On the off chance the worst happens, I won't be able to do it".

Maybe you'll decide that's worth it to be able to complete her will, but you shouldn't feel bad about not wanting to even put yourself in that situation by becoming named guardian.
posted by supercres at 4:53 PM on January 13 [1 favorite]

Unless your sister is seriously ill, this is probably a problem that would never happen, at least not until the kids are in adulthood. But I get the fear, I was terrified at 18 that I might have to raise my much younger sister in the event of my mother's death (she begged me when still very little as other options scared her and our mother was comparatively old when she was born so the risk seemed there). But it never happened. 25 years on, mum is fine, sister is grown up and married.

It did help me to have the possibility in mind and to accept it, so I'd never be blindsided. This is just a precaution. More likely, they'll be visiting you and your sister when you're in your old age. And if the worst happens really soon, there are options with kids that age. No one will force you.
posted by kitten magic at 5:47 PM on January 13 [3 favorites]

The lawyer didn't say the will wouldn't be valid without a guardian being named (which, while I'm not a NJ lawyer, makes no sense), he said the executor can't name a guardian, and the will can't name DYFS as a guardian. That means that after death, with no guardian named, the ordinary processes of state care for children who need it will take place, rather than care passing relatively routinely to the named guardian. If you truly feel you don't even want the option to refuse being their guardian, have the will name no one. The lawyer won't be thrilled because generally one wants one's client's will to address an obvious need like that, but he shouldn't refuse.
posted by praemunire at 6:35 PM on January 13 [3 favorites]

This is going to sound flippant, but it's not. I'd be seriously tempted to name someone I knew by reputation would be a good parent, like Derek Hough.
posted by amtho at 1:55 AM on January 14

This is really something you need to ask your sister, and possibly her kids too.
Your sister is still alive, and she will have a much better idea of who might be suitable than you. She may *want* you to be guardian, but if you really won't, then you need to make a plan of who can realistically actually be Guardian.

It's both only a few years until the kids are technically adults, but if it really was the situation that if she suddenly died, and you were needing to find caregivers for her children, then wouldn't you be looking back on this moment and going, oh crap, why didn't I find out from my sister who could be a potential Guardian, as it was never going to be me??

Get her to post on Facebook "With the tragic loss of my husband, I'm trying to get my Will in order, and I realised I don't know who I would reach out to, or who would be willing to look after my children in the event anything happened to me?" and then see which of her loose ties would be willing.

Also, as far as moral values go, yes, it's really important, yes especially as a woman, to be able to choose not to have kids. *But that's because* once kids exist on the planet, then Adults are responsible for them.
Like, the generic all Adults, going in a rough order of relationship/time/space, unless/until you can pass the responsibility onwards. Contraceptives are great, because that's a big responsibility!
Why? Morally, you don't leave a stranger to die on the sidewalk or drown in front of you if you can help them. There are people who would, but let's just assume that that's a standard we expect of people. We also just try not to traumatize people if at all possible. Adults are otherwise mostly capable and to the extent they are capable, are therefore responsible for themselves, but the distinction of being a kid, not an adult, is basically that they are dependent on adults for their survival, which means yeah, as an adult you might get left holding the baby if you can't find someone more suitable.
We have a backstop of government institutions to step in and make sure kids survive if their parents cannot do that, or are not suitable.

But the point of Guardians in the Will is to avoid the worst case situations like, getting to the point in childhood where you have lost all your existing parents/caregivers, they have died, now that's brutal in and of itself, but then if you then had to go through a situation where there was absolutely *no one* you knew who was willing to care for you, look out for you, look after you, support you through the loss of your remaining parent? And that you are probably going into government care with unknown strangers, and not even anyone who can remember your parents with you, or has known anything about you or your family, and that means you probably don't have any family support network and that's going to be true for the rest of your life, and definitely when you age out of care?
No, you don't risk putting kids through that, even for a few days, right after they've lost their single remaining parent.
And I say a few days, because in most cases, yeah, there will be people they know, vaguely, not-close friends, parents of the kids friends, neighbours etc, who will step up to look after these kids, if they know that is wanted.

But make the worst case situation far less traumatic by just figuring out who those people are *now*, so that if the worst happens, you can tell the kids matter of factly who they'll be living with, and don't throw a bunch of abandonment issues in straight after the trauma of the death of a parent.

How would you find a caregiver if your sister did suddenly die? Who would you reach out to? Well, just do that *now*, and under far less fraught circumstances.
posted by Elysum at 2:02 AM on January 14 [17 favorites]

I think you need to seek out NJ-specific information.

Here, for example, is the information provided by Mercer County which suggests that there needs to be a Guardian appointed to represent the minor's interest in the estate, not necessarily to take them in and look after them. Dealing with someone else's financial affairs isn't fun, but you might want to consider whether you could help with that element if it can be separated out. Or whether there is anyone else who could.
posted by plonkee at 6:09 AM on January 14 [2 favorites]

PLEASE please, while you are figuring this out with your sister, do NOT let the children know that you don't want to take care of them. I can't imagine anything worse than being told that my mother's sibling would rather see me go to foster care than take care of me. That will emotionally scar them.
posted by mccxxiii at 10:02 PM on January 15 [1 favorite]

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