Nipsey Hussle (Photo by Paras Griffin/Getty Images)

Each spring, I get a lot of calls from  parents of young children who are stressed about going on vacation. Instead of focusing on sun, fun, and relaxation, the clients have convinced themselves that they will both die at the same time leaving their young children orphaned. These “mommy” or “daddy” calls, as I refer to them, emit a very understandable and relatable sentiment. The parents’ palpable anxiety as to whom will care for their precious babies serves as impetus for the responsible adult to compel not only the writing of a last will, but its execution.

Generally when a parent dies, the survivor retains sole custody. Thankfully, it is an uncommon circumstance when a child loses both parents either at the same time or within a short period of time. Choosing a guardian in the event both parents are either deceased, incapacitated, or otherwise unable to serve is an important decision. A guardian candidate should share parental values, life experiences, and similar expectations for the children. They should bear empathy and understanding as their role in the children’s lives will come at a tumultuous time. The guardians should be individuals known to the children and, if possible, reside in an area familiar to the children so as not to disrupt their lives. One may appoint a couple to serve together or make their dual service contingent on their marriage. For example, a sister and brother-in-law many be chosen to serve, however, if they divorce or live apart, the brother-in-law should not retain guardianship over the child.

Trustees for the children’s inheritance must also be nominated under a last will and testament. These individuals will control the funds used for living expenses, schooling, camp, clothing, and medical needs. Some opt to have the guardians also serve as the trustees with the theory that all issues should be carried out under one individual. Others prefer a “separation of powers” approach which means that a different family member or friend controls the monies while others focus on child rearing. Depending on one’s family dynamic, the latter may cause more issues. One should consider whether the guardian will feel comfortable asking the trustee for funds and in turn whether the trustee will be prudent, generous, or parsimonious toward the guardian with the distribution of assets. Modeling a child’s trust to distribute assets based on  the age of majority is also advisable. This means that a child’s inheritance can be held in trust well into her 20s and 30s with distributions made at certain points, often at the trustee’s discretion.

Issues of guardianship can become heated when various family members disagree as to custody of the minors. Such is the case with slain rapper Nipsey Hussle, also known as Ermias Asghedom, who was murdered in Los Angeles last month. Hussle left a daughter, 10-year-old Emani Asghedom, who is the subject of a guardianship dispute in the California courts. Prior to his passing, Hussle and Emani’s mother shared custody over Emani, although it is alleged that the decedent had become a primary caretaker toward the end of his life. Following his death, Hussle’s sister, Samantha Smith, made an emergency application for temporary guardianship of her niece, alleging that the child’s mother was unable to provide proper care. The matter is scheduled for a May 14 hearing.

In this case, Emani’s mother’s guardianship should not have been affected by Hussle’s death, but for other family members showing concern. Surely the hearing will reveal whether Hussle had stated his concerns as to the guardianship of Emani in some kind of last will and testament or trust. Such a document may support Smith’s claims or confirm her qualifications to serve. Still the court will examine Emani’s mother’s custody rights and also what is in the best interest of the child. Certainly it is important for unmarried parents of children to discuss their testamentary plans as they relate to their minor children.

Undeniably the guardian of Emani will have some access to the child’s inheritance. Control and division of assets amongst a decedent’s children are issues often litigated. Recently deceased filmmaker John Singleton’s 1993 last will and testament revealed that his entire estate is bequeathed to his oldest daughter Justice. In 1993, he only had one child. He died with four. Generally there are provisions in the law that include children born after the execution of the last will and testament in the estate plan. Many last wills also include said language in the body of the document. A testatrix should confirm as much when executing her last will so as not cause unneeded and expensive conflict years later.

In the event one dies without a will and there is no surviving parent, the local probate judge will choose the guardian for your child. This may not be the individual whom you want to raise your family. Moreover, assets inherited by your child will most likely be held in a bank account supervised under the court’s jurisdiction. Such an arrangement is cumbersome and difficult for the child and the guardian. If you have children, regardless of the size and nature of your assets, it is imperative to execute a will, for the sake of the children. In accomplishing this, you will truly enjoy your vacation.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.