Question:
I am experiencing health issues and have three small children. Their father has passed away, and we do not have any other family in the United States. If I include in my will that I want my three children to emigrate to Honduras to be raised by my younger sister, who is not an American citizen, will that be sufficient? Are there additional steps I should take to ensure they are as prepared as possible in case of my death?
Response:
First, allow me to express my sympathy for your situation and wish you the best of health.
Second, in your will you may nominate your sister as guardian of your children should you pass away while any of them is still a minor. While the courts will ultimately appoint their guardian, your choice will be honored unless someone objects and can prove to the court that it’s not in your children’s best interest that your sister serve as their guardian. The burden of proof will be on the person objecting to your nomination.
Further, I would recommend that your will include your wish that your children live with your sister in Honduras. This will help counter any argument that it’s not in their best interest to move there.
Third, many states now permit parents to appoint a temporary guardian for their children in the event the parent becomes incapacitated. This is a separate document from the will. The appointment may limit the amount of time this temporary guardianship may be in place. For instance, in my state of Massachusetts the appointment may last for only 60 days. So, for this you may want to appoint someone other than your sister, or at least let her know that you prefer that she come up to the United States while you’re incapacitated rather than your children disrupting their lives and moving down to her in Honduras for such a short time.
Finally, I’m sure you’re aware that if your children’s father paid into the Social Security system, they are entitled to surviving child benefits until they reach age 18, or until 20 if they’re still in school.
Harry S. Margolis practices elder law, estate and special needs planning in Wellesley. Ask your estate planning questions at AskHarry.info.
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Publish date : 2024-08-29 13:00:00
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