Westchester attorney says death of Michael Jackson points up concern of testamentary guardians for children

Michael Jackson 1999, Photo: Michael Dalder/Reuters

Michael Jackson 1999, Photo: Michael Dalder/Reuters

After the shock of the death of Michael Jackson, many of the headlines have been divided between the financial extent of his estate and the care of his three children.  Yet, Michael Jackson was just like any other father and whether or not he named someone to act as guardian for his minor kids can only be a guide for the state courts, which will make the ultimate decision over their guardianship.

Often, when parents draft a will, their lawyer will have them name a guardian for their youngsters in case something happens to them; however, what many attorneys fail to tell their clients is that this language is only considered precatory.  That means the language expresses a wish or desire but does not create a legal obligation or affirmative duty.  Further, appointment of a guardian for a child is left to the court’s discretion, which will determine what is in the best interests of the child.  In the case of Jackson, temporary custody has been given to his mother, Katherine, pending a hearing in August.

Now, parents should distinguish between establishing a testamentary trust and a testamentary guardian.  The will can include express language establishing a trust (and a separate instrument will be drawn setting forth the trust’s parameters).  The testator (in this case the parent) can say how the trust will be funded; appoint a trustee; set forth how disbursements will be made and under what conditions, etc.  That deals with assets and finances.  However, suggesting who will care for their children is something they can only suggest and hope that in the end the court will follow their wishes.  If you have minor children, it is imperative that you consult an experienced estate attorney in your state.

In the case of Michael Jackson, we can only guess as to whether or not he left a will.  Today’s NY Times reports that his mother Katherine has petitioned the court to be administrator of his estate.  That would suggest that there is no will because court’s appoint an administrator in the absence of a will which would appoint an executor or executrix.

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2 thoughts on “Westchester attorney says death of Michael Jackson points up concern of testamentary guardians for children

  1. Lisa: You really nailed the limitations on guardianships provisions in a will and the delineation between trusts and guardianships. I raise similar issues at Fromm Taxes. I hope this is value to your clients and friends

    • Thank you, Steven, for dropping by. Many parents refuse to address their mortality by drafting the proper estate plan. Maybe this will be a needed wake-up call.

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