Who Will Take Care Of Your Children?

If you have children under the age of 18, a major concern should be who would raise them if you were to die. Of course, if only one parent dies, in the great majority of cases the surviving parent will have legal preference. But if there is no surviving parent, or if the survivor is obviously unfit (such as if incompetent or in prison), you need to decide who will have the honor. For most, this is an easy decision – your parents or perhaps a sibling. But it is best to put your wishes in a legally binding written document to make sure that there will be no fighting among relatives, especially if they don’t like your choice.


In Louisiana, the person named to care for someone else’s minor child or children is referred to as a “tutor,” which is the same as the term “guardian” in other states. A tutor is appointed by the court – it is not automatic. The court always considers the best interests of the child, but unless serious cause exists, the court will abide by your written direction.

How do you specify who the tutor should be? Either in a will or in a written document that you sign in the presence of a notary and two witnesses. You may also appoint an “undertutor,” the person who is required to keep an eye on the tutor. Also, you must name an alternate tutor in case your original choice can’t serve.

Many young couples desire to name another couple, for example the wife’s sister as the original tutor and her husband as the first alternate. This may be a mistake. If your sister dies, do you really want your brother-in-law to raise your child? He may be just great so long as your sister is married to him, but he may be a poor choice after she’s gone. He may be too busy, unconcerned, or just not have the parenting skills required. Often, it’s better that you name another alternate.


Also consider the financial wherewithal of the proposed tutor. Can your sister afford to have your children in the house?  Your children’s money can’t be used for anyone else, specifically not to benefit the tutor. For example, you no doubt think it important that your children take vacations, such as a trip to Disney World or to the beach. Your children’s inherited money can pay their expenses, but not your sister’s expenses, and your sister may not be able to afford the trip, especially if she has children of her own. If she can’t afford the trip, then your children won’t go either. Additionally, it will be very difficult for your sister to keep track of all your children’s expenses, such as a share of the food or increased utilities. The financial strain on her will not be fair.

Or maybe your sister’s home is not large enough to accommodate your children. Or maybe you are just worried that your children may be resented by your sister’s family because your children have so much, but your sister’s family has so little.

To cure this situation, you can make provisions in your will to allow certain expenditures for the tutor. This would usually require that you include a trust in your will and spell out those items that could be spent for the tutor. You may also want to provide a monthly allowance to the tutor that is not required to be spent on your children, but just hers to spend as she wishes. Then she may be able to afford those vacations with your children. I have seen these allowances run from $500 per month to $7500 per month.

These are just some of the considerations in deciding who should raise your children should both of you die.


There are many reasons that even younger people need to plan their estates, and planning for your child’s care is one of the most important. You never know what could possibly happen tomorrow. Good estate planning is not a do-it-yourself project. No internet forms can replace the input of an experienced estate planning attorney. Don’t wait! Start planning now and do it right with the help of Gilsoul & Associates.

~ Joe Gilsoul

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