Guardianship of Young Children in Your Last Will When You’re Foreign Born and No Family Members Live in the US

HNW Elder Law, Estate Planning, Will Contest and Probate Litigation

    • NJ has many foreign born parents with minor children
    • If a foreign born parent dies can they appoint a guardian for their children from their home country?
    • This articles discusses Guardianship for minors of foreign born residents

Appointing a Foreign Guardian for Your Children In Your Will May Create Problems

If you are a NJ resident with minor children and you die with or without a last will, a New Jersey court may not approve having a non-U.S. Citizen or resident be the guardian of your children should you die.

If you are a permanent U.S. resident but your family lives abroad in their “home” country, the natural choice might be for the children to move to a foreign country and be taken care of by family members (e.g., parents, siblings, etc.) should you die in the U.S. However, don’t simply assume that a NJ court will respect that choice. The court may be reluctant to appoint a non-US citizen as a guardian if it means allowing the children to be taken out of the US. The court will ultimately look to what is in the best interests of the children. As I have observed in my dealings with foreign born families, children very quickly become “Americanized” and don’t want to go to a new home overseas.

 

Your Country Surrogate’s Office Screens Proposed Foreign Guardians

Many county surrogates won’t appoint a non-citizen, who resides outside the US as testamentary guardian of a minor. They will direct the executor to apply to the Superior Court to have the non-citizen appointed the legal guardian which may become a costly and time consuming effort. Few parents are aware that just because the proposed foreign domiciled guardian is a family member he/she will automatically be appointed. It is much more complicated.

It also seems likely that a non-citizen living abroad will trigger an inquiry into the fitness of the guardian under New Jersey statutes (see N.J.S.A. 3B:12-17 or 3B:12-22 and the required disclosures with an application to the surrogate’s office).

There are also practical issues to consider. For example, the proposed guardian may experience delays entering the United States. Who is responsible for the minor during any delay?

New Jersey has a significant legal and illegal immigrant community.  The issue(s) raised in this blog are very important to understand. Have an open discussion with your attorney about this important issue. The welfare of your children is at stake.

To discuss your NJ Estate Planning and guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq., of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ  Estate Planning and Guardianship Attorney

Previous PostNext Post