One of the most universal concerns for people with minor children is this: Who will raise their children if the unthinkable happens and both parents die?

“Choosing someone to fill your shoes is rarely an easy task, especially given that each parent often has different ideas about who would be the best choice. Parents sometimes grapple with this issue to the point that they put off completing their wills altogether!” says Elizabeth Arnold, author of a new book, Creating The Good Will—The Most Comprehensive Guide to Both The Financial and Emotional Sides of Passing On Your Legacy (Portfolio, January 2006, www.creatingthegoodwill.com). A Harvard Law and Yale graduate, Arnold is a former estate planning attorney who today serves as a legacy and will coach, helping clients avert or resolve family friction from wills.

There are two types of guardianship to consider. The personal guardian essentially picks up where the parents leave off in raising the children, whereas a property guardian oversees any assets left to the offspring. While it can be more convenient to have the same person serve both functions, some parents are able to overcome a stalemate in their decision by appointing one person’s top choice as personal guardian and the other’s favorite pick as property guardian. This option works particularly well when one candidate has fabulous parenting skills and another is more adept at financial management.

By law, every minor must have a guardian. If the parents fail to identify one, the state will step in to make the decision. For couples who can’t agree on a choice and for those who are simply not sure how to begin the selection process, Arnold offers these tips (all in Creating The Good Will) for choosing a guardian, backup candidates, breaking a stalemate, and making sure the wishes of both parents are ultimately honored:

• Individually write down your five top choices.

• Share your lists and have a frank discussion about why you made your own choices and what concerns you have about your spouse’s selections.

• After exchanging this information, create a common set of characteristics you both agree are very important. Focus on what’s best for the children, not necessarily what’s best for you as individuals or the family political situation. This could include characteristics such as similar values, attitudes and lifestyles; religion; age; mental and physical health; experience raising children; marital status and stability; current relationships the children have not only with the potential guardian but with their offspring (if any) as well; willingness to relocate to spare your children further upset; and ability to afford raising your children should your estate not completely provide for them.
• Now review the names on your own lists and see if you would like to make any changes, keeping in mind those top characteristics you have jointly agreed upon.

• Compare revised lists to see if you now have some overlapping candidates. If so, work to create a joint list in order of priority.

• If you are still deadlocked, bring in a third party—someone who is not in the running for guardian and has no stake in the outcome. Although a trusted friend or family member sometimes works, a minister or therapist is often the better choice.

• Remember that you can choose a successor guardian, add contingency clauses should the guardian’s life situation change, or simply change your mind about the nomination at any time. The guardian is not legally obligated to serve, even if he or she has previously agreed to do so. People back out far more often than you might think. So, it’s important to specify in your will a second or even third fallback.

• Once you agree on your first choice, talk to this person in detail. Ask for his/her commitment. Do the same with fallback candidates.
• Understand that a judge will make the final determination. In each of your wills, provide specifics about your relationship with this person, the reasons why you have selected him or her, and why this person is the best choice to raise your children.

• Finally, make sure to express to your children—be it through writing or in a video—the thinking behind your will, reasons for choice of guardian, life lessons, milestones, and blessings along with hopes and dreams for their future.

Remember, no matter how hard it might be to reach a consensus on guardianship, no choice is always the worst choice of all.

Elizabeth Arnold is president and founder of San Francisco based Sowing Seeds, a consulting firm that helps clients incorporate The Good Will approach into their estate plans.