Can a Guardian Stated in a Will Be Overruled If Not Blood Related.

Updated on February 01, 2011
K.E. asks from Parker, CO
17 answers

I know the best way to do this is to talk to a lawyer, but I figured I'd asked you wonderful mamas.
My hubby and I need to make a will and we have talked about who we want our daughter left with if something happened to both of us. He thinks we will need to name a blood relation. I love my family and love his blood related family, but I just don't think they are good matches for our daughter. The people we feel that would best raise her like we would want is my hubby's step dad and wife. My hubby agrees, but thinks his mom may get upset and would challenge that choice. Would there be any substance to a challenge and would the courts override our wishes to place my daughter with blood relations. Also because of this would it be better to go through a lawyer to make a will or will the online sites be just as binding?

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So What Happened?

Thank you for all your insight. I will talk to my husband and we will find a lawyer to make sure everything is in order. We had talked with his stepdad and wife before, so now we will really be able to discuss it now that my hubby doesn't need to worry as much about blood family. Half the reason we want them to raise my daughter in a worse case, I know that my stepmom in law (?) would make sure my daughter will have everyone in her life ( she has even tried to get everyone together for holidays, exs included) and they are in a position that they can offer more to her than we can. Hopefully it will never come to this, but I will feel better knowing my daughter would be safe in a loving family that she knows well.

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C.H.

answers from Dallas on

You don't have to name a relative.
It is necessary of course to discuss this with the person you naem and see if they are up for it. In my mind, you should have enough life insurance that would go to the kids' trust and for their being raised. Get it before you guys get any health or weight problems. Term insurance is cheaper and can go out 20 years.
It only makes sense to then discuss it with his mother on why. If she knows all the reasons you think your friend would be great and that they have accepted the responsibility, and that they know the importance of keeping her as a close grandmother, she may be relieved that she won't be trying to raise a teenager at the age of 60-70.
See if you can get a free consult with an attorney to find out what they offer in protection over and above what a form will would do. I presume it could close loopholes that his mom may want to challenge.
Don't forget what to do if those friends change their minds for any reason (like their health) or if one of them dies or whatever. Always look three steps ahead for potential problems.

3 moms found this helpful
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A.C.

answers from Houston on

Almost anything in a will CAN be challenged, but it doesn't mean that it will be overturned. That truth is that grandparents have few legal rights in most states. I wouldn't trust something like this to an online service.

2 moms found this helpful
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M.J.

answers from Sacramento on

No, a will is a legal document. You can chose whomever you'd like as your childrens' guardian(s). I would go through an attorney to get this done right. It doesn't cost very much to have a basic will drawn up.

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M.P.

answers from Portland on

I'd definitely go to a lawyer. You want your will to be strong and you're concerned a bout a challenge. Yes, even a relative named as guardian can be challenged. It's just like the statement anyone can sue. Your will can be challenged.

I suggest that you have the will drawn up by a lawyer who has the experience to make the will as strong as it can be. I then suggest that you talk with your husband's mom and get her on board with the idea of who you have named. Do this gently over time. Woo her.

Keep in mind that it's unlikely that your will will ever have to be put in affect. You're just covering all the bases just in case. By keeping your conversations low key and having them over time you're more likely to win her over.

My daughter discusses with me from time to time about who her children would be raised by if something happened to her. I feel comfortable with her choices because she has included me in her thinking. Otherwise I think I'd feel defensive.

2 moms found this helpful

L.M.

answers from Dover on

Definately talk to a lawyer as laws very by state. A legal will is a legal will and should be just a binding; however, an attorney would be your best bet to get all you questions answered and all the details taken care of (you know the "I"s dotted and "T"s crossed so to speak).

Anyone CAN challenge the will but if the only issue is not being blood related then it shouldn't be overturned (again, varies by state). One way to help with this would be to spell out that although you have very loving blood related alternatives you have decided on "whatever their names are" and hope the your family will respect your wishes as it was well thought out and not made lightly.

Hopefully you will never need to find out!

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L.A.

answers from Chattanooga on

Definitely go through a lawyer. Perhaps you could include "visitation rights" for the real grandparents? It would be a shame for your daughter to never see them...for both their sakes.

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M.J.

answers from Dover on

Go through an attorney to ensure all of your t's are crossed and i's are dotted, but once it's done correctly then nobody will be able to "overrule" your last wishes. Now, your mother may not be happy about it, and she may even try to obtain a lawyer of her own to attempt to challenge the decision, but there will be no legal reason why it should be changed.

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M.M.

answers from Chicago on

We went through this when we established our wills. We named our guardians specifically.
That being said, it CAN be challenged, but the people challenging the will would have to demonstrate just cause (delinquency, etc...) as to why your appointed caregivers should not be granted guardianship.

Your appointed caregivers also have the ability to refuse guardianship, which would render your kids wards of the state. So you may want to include a contingency in your will in the event that that is the case.

Last: do this with a lawyer. In a case like this, you don't want any room for interpretation or credibility. So don't use the internet. Sit in a conference room and have someone walk you through scenarios and what-if's. It's the future of your family, after all.

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E.M.

answers from Honolulu on

Well, she could try, but judges are unlikely to change it if you follow all the rules. That means TELLING his mom now, and telling the people you intend to care for her NOW. You need to also write a certified letter EVERY year to the stepdad and wife with the date so they have proof that you actually WANT them to care for your daughter. (My relatives will try and fight it if something happens so I am a little OCD about it and even blog about it every year. That way it is even in the public forum. I also email links to the blog post to most of my family just to be on the safe side). Everyone knows where my kids are going to go and if the judge has 30 relatives say, "well, she did tell us where she wants the kids to go and she blogged about it, but we think she didn't think it though and want the kids!" Well, that loses strength the more years you blog about it (So far we have been doing this for 6 years, the blogging the letters and the yearly phone calls with relatives... it is NO secret.)

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I.L.

answers from Alexandria on

We both have wonderful families, but for a multitude of reasons we named a couple in our will whom neither of us are related to. However, we also named my husbands sister as the trustee for the estate, executer of the will. We trust our friends for the care of our children completely and have no doubt that they would honor our family and keep them involved.
It wasn't a trust issue with the money at all. We just knew of any person on the planet who would be most likely to execute our wishes to the letter that would be SIL. (She would have also raised our children amazingly but she lives several states away and the thought of losing their parents AND everything they knew as home is something we could not do to our children.)
We talked to both the couple and his sister before to make sure this was acceptable to them. After it was done we explained to parents who we had chosen and why. All went well.
So this is doable, and there are a lot of ways to see it done. I have never used an online service before, so I can't tell you how they work. But I did lots of research and a will is legally binding regardless of if you or the attorney's office draft it. However, they are the professionals and are less likely to leave room for error than us well meaning parents.

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J.C.

answers from Anchorage on

You do not have to pick family, and even if they contest it, chances are they would lose. But because there is a chance someone might contest, make sure to use a lawyer so you know every i is dotted and every t crossed. And make sure that 1: the step dad and wife are willing to take the child on, and 2: that you name a back up in case something changes and they are no longer able or willing. The way mine is set up is that the primary is my mom, if she can not or will not than my aunt, and if she can not or will not then my mom will find a suitable caregiver.

1 mom found this helpful

V.W.

answers from Jacksonville on

Echoing everyone else's advice, I would add, that you can add statements to your will that explain your reasoning, if you would like. Or include a letter to his mom, who it sounds would be likely to challenge. You could state plainly that you gave it the utmost thought and consideration and feel that __ is the best place for your daughter. And that this way, his mom still gets to be "grandma".. .the FUN one. Not the one that has to carry out discipline and be responsible for the drudgery side of parenting. Being a parent and being a grandparent are 2 different things entirely. She has "done her time", and now gets to have the "fun" part.
:)

1 mom found this helpful
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T.C.

answers from Colorado Springs on

Every state has its own laws. For example, in Florida, the guardian has to be either a blood relative or actually live in the state of Florida. You need to check with your lawyer. Of course, it can be contested, but if you are very clear in your instructions, and perhaps expound upon why you made this decision, it seems like it would most likely hold with your options. However, judges can do whatever they want. I have heard of cases where the guadianship was overturned because a family wanted someone from their church to take their children as their own family were not Christians. The family claimed they were "cultish." They weren't. They just were strong believers, and wanted the same upbringing for their children as they had begun. The family won in that case. So sad, I think. Parents obviously put a lot of time and thought into these decisions. Their wishes should be honored.

L.L.

answers from Nashville on

You may want to go through a lawyer just to make sure your wishes are carried out like you want them and CAN'T be overruled.

M.L.

answers from Houston on

I would go through a lawyer in this instance.

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G.B.

answers from Oklahoma City on

Of course she can contest the arrangements and she would have a chance of winning. Every year hundreds of pages of new law regarding grandparents rights is being written. Depending on the judge it could go either way.

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K.B.

answers from St. Louis on

When I went through to set up my will, which is a little more complicated since I'm not married to the father, I had to stipulate who would get the child if something happened to both of us. The lawyer informed me that anyone can contest it, but when they do, they have to basically show why the choice I made was a bad one and why the child would be better with someone else. Even if you requested a blood relative, another blood relative can contest it, so your not really protected that way. However, most judges would not violate your wishes from what I was told unless there was an extreme circumstance. Just make sure, like another poster said, that you have multiple written forms showing your desire for the kids to be placed with these individuals, and they really won't have much of an argument cause they can't prove that they are bad parent options.

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