Naming a Tutor in your Will is a Crucial Step:

It’s difficult to think about the situation where a young child loses both of his or her parents, but this is the time when a tutor would step in to take care of the child.  Naming a tutor is often overlooked when preparing a last will and testament, especially when someone writes their own will.  In many instances though, naming a tutor is the main reason for writing a will.  It is not uncommon for someone’s final wishes to coincide with the default laws of intestacy.

For instance, perhaps a married couple’s intention is to leave their entire estate to their children and a spousal usufruct to each other.  They may know that they don’t need wills to do that as the default laws already dictate what they want.  However, if they have minor children, they would be wise to prepare wills for the purpose of choosing who will care for their minor children in the event that they both pass way.

What is Tutorship?

In Louisiana, tutorship is what other states call guardianship.  A tutor is the person who is legally responsible for the care of a minor child.  There are four types of tutorship:

• Natural tutorship occurs when one parent dies or the parents get divorced.  When one parent dies, the other parent is the tutor by right.  In the event of divorce or legal separation the custodial parent is the legal tutor, and in the event of joint custody both parents serve as cotutors.
• Tutorship by will occurs when the last surviving parent dies and names a tutor in his or her will.  This is the focus of this article, and the is what is preferred over the following two types of tutorship.
• Tutorship by the effect of law occurs when both parents have died and neither have named a tutor by will.  In this instance, a court will appoint a grandparent, sibling, cousin, or step-parent as the legal tutor.
• Dative tutorship occurs when a child is orphaned and has no qualified relatives.  A court will then appoint a non-relative to care for the child.

Considerations when Naming a Tutor:

It goes without saying that when considering the naming of a tutor, one should carefully choose someone they fully trust.  Most people choose a sibling or a close friend or relative.  Perhaps the person or couple is already the child’s Godparent(s) and has a close relationship with the child.  Nevertheless, careful consideration needs to go into their values, morals, financial and emotional stability, and parenting style and experience.

One may also name an alternate tutor in the event that the first-choice declines, is not found qualified by a court, or predeceases the parents.  It is also wise to notify the prospective tutor as well as other close relatives.  While this isn’t a requirement, it definitely helps to avoid the surprise as well as disputes that can arise between other interested relatives.

Testamentary Trust:

Another major consideration is the forming of a trust within your last will and testament.  While the default tutorship laws require tutors to act prudently, one has wide latitude to place restrictions and rules that govern how their estate is handled on behalf of their children.

It’s also not required that the named tutor also be the trustee of the testamentary trust.  For instance, if a couple each have a close and trusted sibling, they may decide to name the more nurturing sibling as the tutor and the more financially savvy sibling to be the trustee.  In this case, the trustee would make regular disbursements to the tutor for the child’s care.  The trustee would essentially be responsible for monitoring requests by the tutor for funds to make sure those requests are to carry out the wishes of the parents or to act in the child’s best interest.

It is also common for the parents to make a particular bequest directly to the tutor as a gift for taking on this huge responsibility.

Special Needs Children:

Parents of a child with special needs have additional considerations.  The most useful being the option to request a court for a “continuing tutorship“.  By default, your children will be considered capable of managing his or her own affairs upon reaching the age of majority.  However, parents in Louisiana have the option to have the child essentially named a permanent minor rather than later going through the interdiction process.  When a continuing tutorship is granted, parents should also consider naming a tutor in their wills even after their child turns 18.

Parents of a special needs child should also consider creating a special needs trust as part of their will.  A special needs trust will help ensure that any government benefits such as Medicaid and SSI are not lost due to their inheritance.

What you Need to Know if you Have Been Named a Tutor:

If you have unexpectedly found out that you have been named a tutor or if someone has asked if they can appoint you as tutor, you may be wondering what your role may be.  First, the parents are trusting you to provide for and raise their children.  You were likely selected based on traits such as your values, educational style, parenting style, and other qualities.  While everyone hopes you will never need to fill the role, they have decided you would be the best fit to raise their children in the unlikely event that a tutor is needed.

The parents are expecting you to raise their children according to their wishes.  If they give you advanced notice, it is wise to discuss expectations with them.  You may want to discuss what values are important to them, what their religious views are, how they want you to use their funds for their children, what they expect in regard to education, etc.  This difficult conversation may also provide important information to help you decide if you want to accept or decline the role.

Louisiana Estate Planning Attorneys:

We are a Gretna law firm that has served the New Orleans area since 1980.  Our estate planning attorneys can help you prepare a last will and testament that ensures your minor children are cared for by someone you trust.  We take pride in offering a personal and trusted experience.  Call us today for a free consultation and find out why so many of our clients come back to us.