BETA
This is a BETA experience. You may opt-out by clicking here

More From Forbes

Edit Story

Adam Yauch's Will Reveals His Private Dilemma

Following
This article is more than 10 years old.

Adam Yauch, who died on May 4 of cancer, was best known as a co-founder of the Beastie Boys. But his will, filed in New York City Surrogate's court on Aug. 6, reveals that in his personal life Yauch wrestled with a dilemma that many parents face: whom to name as a guardian to raise his child.

In his 2001 will, Yauch, who was 47 when he died, leaves his entire estate (worth an estimated $6.4 million) to a trust, the terms of which are private. But his will, which is a public document, suggests that he and his wife Dechen disagreed about who would raise their children if they both died--say, in an auto accident. (Their daughter Tenzin Losel was born in 1998.)

Ideally, couples should agree on the choice of guardian, with each of their wills appointing the same person. But disagreements often delay planning.

Yauch's will describes an unusual arrangement that probably grew out of compromise. If he died in a year with an even number, he appointed his parents, Noel and Frances Yauch, as the guardians, with his wife's parents Sonam and Chuki Gangdu, as the backup if his own parents were unable to play that role. On the other hand, if he died in an odd-numbered year, the arrangement would be reversed, with her parents stepping in as guardians, and his serving as the backup.

Without a will, if your children are minors and you were a single or surviving parent, a court will appoint a guardian for them. Therefore, reaching an agreement about this issue and formalizing it in a will is extremely important. Note too, that naming the guardian to care for your child's person (as opposed to his or her property) is something you can only do in a will – not in a trust.

Unmarried couples take note: if you are not both biologically related to the child, it is especially important for your estate planning documents

to cover all the issues. The rules on adoption of children by unmarried couples vary enormously from state to state, and though the law is evolving, it lags behind current practices. If you and your partner have a child, it’s important to consult a lawyer who is familiar with the rules of your state, and to revisit the subject if you move to a different one. (See too, "Same-Sex Couples Face A Raft Of Planning Issues.")

A guardian’s responsibilities range from the mundane to the monumental: everything from tying shoelaces and drying tears to selecting schools and medical care. Like Yauch, you should designate more than one person, so if your top choice is not available, your second preference is clear.

While you’re at it, you’ll probably want a testamentary trust (one created by your will at your death) to hold any assets you’re leaving minor children. In some states, if you have not made arrangements for both functions, the court will appoint a separate person to deal with the child’s money.

You could name a guardian for the money (in Yauch's will, the same people played both roles), but a trust allows you to spell out how the money should be spent and at what age and under what conditions your child should gain control of any remaining cash. You can also use a trust to build in a little oversight—for example, naming both your child’s prospective guardian and someone else as cotrustees.

When choosing a guardian in case their child is orphaned, people typically look first to relatives, starting with their own siblings – the child’s aunts and uncles. Especially if these siblings already have children of their own, the idea is that your children would be raised with their first cousins. Naming parents, as Yauch and his wife did, tends to be a second choice, and they must be young enough.

When there is a big age gap between children (for instance, if a parent has been married more than once and has offspring from both unions), older siblings sometimes serve as guardians for younger ones. How well this works depends on the family dynamics.

So how should you make this agonizing decision?

Even if certain family members seem like obvious candidates, take into account all the factors involved. For example, it may not be good for a child who has lost his parents to suddenly have to relocate, losing contact with friends and the world he lives in. Put some thought into the lifestyle and values, as well as the location, of the person you’re thinking of choosing. You should consider, too, whether the prospective guardians can incorporate your children into their households. If they have their own children, can they handle more? If they have none, are they prepared to accept a ready-made family?

Think back to when you became a parent and how it changed your world; would you want someone who has never played that role to start with your child?

Few parents find someone who meets all their criteria. More often, the choice involves a process of elimination or deciding which qualities are most important.

You will want to have heart-to-heart talks with the people you have in mind before you name them as guardians. You can discuss your goals and theories of parenting in as much detail as you like, but including these specifics in the will is short-sighted. It’s great to say, “I want you to live in the Northeast and send the child to private school,” but circumstances change. You don’t want to tie the hands of the person whom you are trusting with your child’s future.

Instead, you can supplement the will with a letter or memo outlining your wishes. This might cover everything from your preferences about religion, education and allowance to the name of your pediatrician. It could also ask the guardian to consult with specific friends or family

members who know your children well but who, for whatever reason, would not be appropriate as guardians. For a poignant example see "The Mummy Manual," written by Helen Harcombe, a consumer advocate in South Wales who died of breast cancer in 2004 leaving behind her husband and 7-year-old daughter.

Though not binding the way a will is, such a document provides the guardian with a clear, written record of your preferences. It also sends a message to your children about how much you cared.

Still, try not to micromanage or create a moral obligation for the guardian to follow very precise instructions. Sometimes it’s better to express broad goals rather than precise tactics – for example, to help build your child’s independence and confidence; encourage her to pursue interests that come naturally and maintain relationships with family and friends.

Being a parent is full of surprises and requires constant judgment calls and adaptation. Try as you might to cover all the bases, ultimately you need to choose the people whom you really trust to do the right thing, and hope for the best.

Also On Forbes

Part Of Beastie Boy Adam Yauch's Will, Banning Use Of Music In Ads, May Not Be Valid

Summer Camp And The Process Of Letting Go

12 Estate Planning Questions That Might Make You Squirm

On Julia Child’s 100th Birthday, Her Wisdom About Old Age

Archive of Forbes Articles By Deborah Jacobs

Deborah L. Jacobs, a lawyer and journalist, is the author of Estate Planning Smarts: A Practical, User-Friendly, Action-Oriented Guide. She frequently updates her LinkedIn profile. You can follow her articles on Forbes by clicking the red plus sign or the blue Facebook “subscribe” button to the right of her picture above any post. She is also on Twitter