A child of the 80’s and 90’s, I have a soft spot in my heart for The Simpsons. I can’t say I’ve watched a broadcast episode in decades, but I was delighted to find it in the offerings of Disney+. The other evening I put on an episode while I was making dinner. To my surprise, it had a great estate planning hook.
Episode 11 of Season 24 is titled “Changing of the Guardian”. After a natural disaster that nearly kills them both, Homer and Marge become concerned that they should name guardians to care for their children in case something happens to them.
The Simpson parents search for acceptable candidates: Grandpa Simpson is too old, Homer’s brother has lost his wealth and is not considered any further; Marge’s sisters are perhaps too strict (they have trained their adopted daughter to perform tricks on command). The other citizens of Springfield want nothing to do with the Simpson children and actively avoid Marge and Homer to avoid being roped into a guardianship.
Looking farther afield, the Simpsons go on a road trip and encounter a wealthy childless couple: a professional surfer named Mav and an environmental lawyer named Portia (voiced by Danny Devito and Rashida Jones, respectively). After being wooed by the kids, Mav and Portia agree to serve as guardians if any tragedy should befall Homer and Marge. (There is a nice scene showing the adults all signing the paperwork to make it legal.) Mav and Portia ask to take the kids for a ski weekend. At first Homer and Marge enjoy their time without the responsibilities of caring for their children, but they grow to suspect that the guardians are actually trying to steal their children. Mav and Portia fess up, and the kids are returned to their natural parents.
A few observations and lessons:
Naming a guardian for your minor children who would serve after your death (called a testamentary guardian) is an important function of a Will. In fact, it is an excellent reason for parents to get Wills. To prevent conflict and limit the trauma for the children, I strongly encourage my clients to make sure that both parents have nominated the same persons as guardian.
The probate court of the county where the children reside has jurisdiction over guardianships, and it must give deference to the wishes of the late parent when officially authorizing a guardian. The choice of the deceased parent that is incorporated in a Will will be accepted by the court unless there is “clear and convincing evidence that the nominated individual is unfit” (e.g., they are incarcerated or they have a known drug addiction). In other words, the test isn’t whether the court thinks there is someone better, the test is whether the nominated guardian is clearly unfit.
A person named as a testamentary guardian can decline to serve. One of the lessons The Simpsons nicely shows is how important it is to consult with the proposed guardian when naming them in a document (see also Manchester by the Sea). It prevents surprises for the nominated person, and it gives you reassurance that your plans are more likely to be effective.
If there is not a testamentary guardian named, any interested person can petition the Probate Court for a determination as to who should be the permanent guardian of the child. There will be notice to relatives and other interested persons, and a hearing will be held by the probate court.
Until the death of the parents, persons named as guardians in a Will have no legal authority or responsibility for the children. (Similarly, there is no legal significance to being named the godparent of a child.)
In the Simpsons, Mav and Portia sign a paper (which Grandpa Simpson notarizes) to make the guardianship official. In fact, under Georgia law, because testamentary guardianship is contained within a Will, it would be Marge and Homer signing the paper, not Mav and Portia. Also, in Georgia two witnesses have to sign a Will for it to be valid. A notary is not required to make a valid Will, but they are often employed to notarize a “self-proving affidavit” that generally accompanies a Will.
Stay tuned as I stumble across other Simpsons episodes that have some relevance to estate planning. I’m sure there are some inheritance plotlines out there somewhere!