Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, August 28, 2012

Guardianship of Orphans -- Who decides: dead parent or court?

DiRusso Kristen_PetersAlyssa A. DiRusso (Professor, Cumberland School of Law) and S. Kristen Peters (Associate, Burr & Forman LLP) have recently published their article entitled Parental Testamentary Appointments of Guardians for Children, 25 Quinnipiac Prob. L.J. 369 (2012).

Here is the SSRN abstract of their article:

Who decides the right person to raise a child whose parents have died? Although many parents believe that the appointment of a guardian they make in a will for their child is binding, in fact courts in many states can choose to ignore parental wishes. Nearly half of U.S. states vest the power to appoint a guardian with the court, which can consider issues in addition to – and in some cases as a priority over – the parent’s testamentary appointment. States are divided into two categories: court-appointed states, where the court has the ultimate power to appoint a guardian, and parent-appointed states, where the parent’s appointment controls (subject to certain limitations). This article describes the status of state law within these categories of court-appointed and parent-appointed states, and explains why statutes ought to be reformed to insure that courts cannot ignore a parent’s testamentary appointment of a guardian.


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